Madras H.C : The petitioners are three of the four sons of one Abdul Rasheed, who was a partner in the firm on which an assessment was made for the year 1962-63, the year preceding the dissolution of the firm.

High Court Of Madras

V.M. Jameel Ahmed & Ors. vs. ITO

Section 189(3)

Asst. Year 1962-63

R. Jayasimha Babu, J.

Writ Petn. Nos. 3445, 3446 & 3448 of 1996

27th February, 2001

Counsel Appeared :

Mrs. Pushya Sitaraman, for the Petitioners : T. Ravikumar, for the Respondent

JUDGMENT

R. Jayasimha Babu, J. :

The petitioners are three of the four sons of one Abdul Rasheed, who was a partner in the firm on which an assessment was made for the year 1962-63, the year preceding the dissolution of the firm. The property of the father in the hands of the sons, is sought to be attached for the recovery of the tax arrears for that year.

2. There is no dispute about the fact that the father died in the year 1958 and he could not be, and was not a partner in the firm in the year for which the assessment was made. Though the taking of accounts stood postponed till the time of dissolution and the firm did not come to an end with the death of the father by reason of the terms of the partnership deed, that does not make a dead man a partner for the purpose of assessment and for recovery of tax arrears of the firm.

3. Counsel for the Revenue relied on s. 189(3) of the IT Act, to contend that even legal representatives of a partner are liable. That sub-s. (3) of s. 189 of the Act reads thus : “Every person who was at the time of such discontinuance or dissolution a partner of the firm, and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum.”

4. This sub-section, instead of supporting the Revenue, supports the stand of the assessee. It is clearly provided that the persons to be held liable are the persons who were partners at the time of such discontinuance or dissolution. In this case, the firm against which the assessment was made was dissolved w.e.f. 18th March, 1962. The father of the petitioners who was a partner died in the year 1958. He certainly was not a partner in the firm during the asst. yr. 1962-63 and no liability can be cast on his legal representatives solely on the ground that dissolution took place on 18th March, 1962, nearly four years after the death of the partner.

5. The impugned orders cannot be sustained and they are set aside. The writ petitions are allowed. Consequently, WMPs Nos. 5545 to 5548 of 1996 are closed.

[Citation : 268 ITR 239]

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