KISHORILAL KISHANLAL SHAH v. INCOME TAX OFFICER
[Citation -1984-LL-0327-8]

Citation 1984-LL-0327-8
Appellant Name KISHORILAL KISHANLAL SHAH
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 27/03/1984
Assessment Year 1976-77
Judgment View Judgment
Keyword Tags refusal of registration • oral evidence
Bot Summary: The assessee produced discharge certificate issued by the Hospital concern in which the above two persons were born to indicate that those persons had attained majority much earlier, prior to their signing of the partnership deed. In respect of the other point, he noted that the assessee has filed photo copy of birth certificate from the Calcutta Corporation to show that Birendra Kr. Shah was born on 5th Oct. 1954. In another photo copy of the birth certificate in respect of Gopinath Shah, Son of Kishanlal Shah the date of birth was shown as 8th Aug., 1954, which was also supported by the certificate of the Calcutta Corporation. In the present case, apart from the affidavits and horoscope, the assessee produce discharge certificates in respect of both the partners, as granted by the hospital concerned. In the present case before us, we find that before the ITO, the assessee produced discharge certificate as issued by the hospital concerned in which the dates of birth of the person concerned have been categorically stated. The ITO, on the other hand, did not dispute the authenticity or genuineness of these hospital discharge certificates. The hospital concerned have given a discharge certificate in respect of those persons concerned, which are also corroborated by the Register of Birth etc.


CALCUTTA BENCH KISHORILAL v. INCOME TAX OFFICER KISHANLAL SHAH March 27, 1984 JUDGMENT Order EGBERT SINGH, A. M.: first appeal is by assessee which is directed against order of CIT (A) by which he had upheld order of Income Tax Officer (ITO for short) in rejecting registration to firm for asst. yr. 1976-77. second appeal, however, is by Revenue, which is directed against order of AAC of IT (AAC for short) in directing ITO to allow registration to firm for asst. yr. 1974-75. points involved are identical and facts are common. Accordingly, counsels of both sides have addressed us in one set. For sake of convenience, we consolidate appeals for disposal by this common order. From brief narration made in preceding paragraph, we consider that it would be convenient that we should first deal with appeal relating to asst. yr. 1974-75, as preferred by Revenue. ITO rejected claim of assessee for registration, as per his order under s. 185. main and effective point or basis for ITO to reject claim of assessee was that age of two of so-called partners as per educational certificates, showed that those two partners were minors at time when they were made parties as full-fledged partners in Partnership Deed. assessee produced discharge certificate issued by Hospital concern in which above two persons were born to indicate that those persons had attained majority much earlier, prior to their signing of partnership deed. assessee further produced horoscope to show majority of those persons on date of execution of Deed. ITO did not accept horoscope as same can easily be prepared to suit case. He also held that application in Form No. 11A was not filed within specified time and on this ground also, application for registration had to be rejected. According to ITO, agreement of partnership in which minors were shown to be major on date of execution of deed, was void and, therefore, genuineness of firm was disproved. Accordingly, he rejected claim for registration. matter went up further and when issue was placed before Tribunal in appeal, being ITA No. 1296/C/78-79, it was pointed out that AAC, who confirmed order of ITO did not consider affidavits filed separately by fathers of above two partners, who had since attained majority. It was noted that AAC has not discussed those affidavits at all and Tribunal was unable to say anything with certainty in that behalf. Tribunal, therefore, set aside order of AAC and directed him to decide appeal afresh after taking into consideration affidavits and other evidence available on record. order was dt. 5th Aug., 1980. AAC in impugned order dt. 14th March, 83 noted this background of case. He noted that Tribunal accepted fact that application in From No. 11A was filed in time and, therefore, this part of objection of ITO could not stand any more. But in respect of other point, he noted that assessee has filed photo copy of birth certificate from Calcutta Corporation to show that Birendra Kr. Shah was born on 5th Oct. 1954. name of his father was Shiblal Shah. It was also stated that this point was supported by hospital discharge certificate dt. 10th Oct., 1954. Similarly, in another photo copy of birth certificate in respect of Gopinath Shah, Son of Kishanlal Shah date of birth was shown as 8th Aug., 1954, which was also supported by certificate of Calcutta Corporation. According to assessee above two persons were major parties at time of execution of partnership deed. affidavits were filed by respective fathers. It was submitted before AAC that dates of birth shown in school leaving certificate were not really exact dates of birth, as it was commonly known that in school leaving certificate, dates are given in such manner so that boys in later life can get advantage of their ages in matter of service and other facilities. It was also stated that exact date of birth as given by Calcutta Corporation and as supported by hospital certificate should be taken into account. AAC considered submissions made before him and noted that under IT Act, there was no provision as to how verification of age should be made in respect of grant of registration. He noted that in view of discharge certificate given by hospital and as supported by Calcutta Corporation, AAC had no hesitation to admit that these partners were major on date when deed was executed. He also noted that on that ground, registration of partnership cannot be refused. AAC went on further to note that is has not been challenged by ITO in his order under s. 185 that partnership was not genuine and that once he was accepted partnership as genuine partnership, there could not be any ground for refusal of registration if actual dates of birth in respect of partners were taken into consideration. He directed ITO accordingly to allow registration for year under appeal. Revenue brought this appeal before us contending that AAC erred on facts and in law to direct that registration should be allowed for asst. yr. 1974-75 and equally, AAC erred in accepting photo copy of hospital discharge certificate as evidence of proof of age. It is argued at length on behalf of Revenue that AAC failed to follow direction of Tribunal as noted earlier that affidavits given by fathers of two partners should be taken into consideration. It is pointed out that although AAC did not look into this matter, yet he has allowed registration to assessee on wrong premises. It is also argued that for asst. yr. 1976-77, CIT (A) on identical point of fact and law disallowed claim for registration of firm after holding that certificates given by educational authorities were indeed final and binding in matter of age for all intents and purposes and that this was law of land, according to decision of Hon ble Supreme Court of India in case of Justice J. P. Mitter. It is pointed out that CIT (A) for asst. yr. 1976-77 following decision in case of Justic J. P. Mitter, held that Sri Gopi Nath Shah attained majority on 3rd Sept., 1976 and Sri Birendra Kr. Shah attained majority on 10th Oct., 1975. According to CIT (A), these two persons were minors at time when deed was drawn up. Accordingly, Departmental Representative for asst. yr. 1974- 75 argues at length tha AAC in his impugned order committed errors in giving above direction. It is urged that order of AAC on point may be reversed and that of ITO may be restored. assessee s ld. counsel supports order of AAC for asst. yr. 1974-75. It is argued that before AAC, copies of affidavits in question were placed for consideration in addition to certificates from corporation and from hospital concerned. It is pointed out that AAC has validly accepted fact that above two partners were major at relevant point of time, basing his finding on discharge certificate etc. In respect of arguments made by ld. Departmental Representative, connected with decision in case of Justice J. P. Mitter (supra), it is submitted that issue and point involved in that case, was completely different and facts of case present are distinguishable and, therefore, Department is not justified to rely on decision of CIT (A) as sought out to be made by Revenue before us. In fact, it is argued that CIT (A) went wrong in holding in impugned order for 1976-77 that ratio in case of Justice J. P. Mitter would be applicable to facts of case. It is also urged that CIT (A) in that order should have given due regard to earlier decision of Tribunal for asst. yr. 1974-75, copies of which were placed before him at time of hearing. It was also urged that CIT (A) should not have been brushed aside evidence produced in form of discharge certificates issued by hospital concerned and as supported by Calcutta Corporation on flimsy ground and, therefore, AAC for asst. yr. 1974-75 was justified in accepting claim of assessee. It is urged, therefore, that on these basic facts and circumstances, order of AAC for asst. yr. 1974-75 should be sustained and order of CIT (A) for asst. yr. 1976-77 requires to be set aside and claim of assessee may be allowed. We have heard both sides at length and we have perused orders of authorities below along with other papers placed before us for our consideration. It is pertinent to note here that ITO while rejecting claim for registration for asst. yr. 1974-75, has stated in his order under s. 185 that inter alia partnership was void as minors have been shown as major on date of execution of deed. That apart, he noted specifically that genuineness of firm was disproved. But no further discussion has been made nor any material part what has been stated earlier, has been brought on record to infer that firm was not genuine. AAC in impugned order for asst. yr. 1974-75 as noted earlier, mentioned that it has not been challenged by ITO in his order under s. 185 that partnership was not genuine and once ITO accepted partnership as genuine, there cannot be ground for refusal of registration if actual dates of birth in respect of partners were considered. As stated in preceding paragraphs, CIT (A), on other hand, rejected claim of assessee for registration for asst. yr. 1976-77, following ratio of decision in case of Justice J. P. Mitter (supra). case of assessee is that ratio of that decision would not be applicable to facts of present case as present facts are distinguishable. It is seen in that decided case, that affidavits were filed by persons concerned in order to support claim of that party. But in present case, apart from affidavits and horoscope, assessee produce discharge certificates in respect of both partners, as granted by hospital concerned. It is seen that ITO did not dispute genuineness or otherwise of these hospital discharge certificates. He, however, declined to accept same, in view of fact that in school leaving certificate age of above two new partners was shown to be below age of majority. We agree with contentions made on behalf of assessee that facts of present case before us are distinguishable as far as case of Justice J. P. Mitter is concerned. In this connection, we may also refer to another decision of Hon ble Supreme Court of India in case of Umesh Chandra as reported in AIR 1982 SC 1057, in which similar situation has arisen. Inter alia, it was observed by Hon ble Supreme Court at p. 1061 in last part of para 21 that in our country, it is not uncommon for parents sometime to change age of their children in order to get material benefits either for appearing in examination or for entering particular service which would be denied to child as under original dates of birth, he would be either under aged or ineligible. It was held in case of Umesh Chandra (supra) that age certificates as regularly maintained by school authorities could be accepted as evidence. In present case before us, we find that before ITO, assessee produced discharge certificate as issued by hospital concerned in which dates of birth of person concerned have been categorically stated. ITO, on other hand, did not dispute authenticity or genuineness of these hospital discharge certificates. In our opinion, these certificates issued by hospital were contemporaneous evidence. That apart, affidavits of fathers of two partners have also been taken into account by authorities below. True, in case of Umesh Chandra (supra), Hon ble Supreme Court agreed with Hon ble High Court that in cases like this, ordinarily oral evidence can hardly be useful to determine correct age of person, and question, therefore, would largely depend on documents and nature of their authenticity. Oral evidence may have utility if not documentary evidence is forthcoming. Even horoscope cannot be reliable because it can be prepared at any time to suit needs of particular situation (para 7). But in instant case before us, in addition to horoscope, fathers of persons concerned have filed affidavits in support of their contention. Besides, hospital concerned have given discharge certificate in respect of those persons concerned, which are also corroborated by Register of Birth etc., maintained by Calcutta corporation, which, in our opinion, should be considered as vital, being contemporaneous evidence to present dispute. In this view of matter and on facts of case, and after hearing both sides, we are of opinion that registration for asst. yr. 1974- 75 was correctly allowed by concerned AAC and registration was wrongly disallowed by CIT (A) for asst. yr. 1976-77. We, therefore, direct that registration for above two years under appeal should be allowed. In result, appeal by assessee is allowed and appeal by Revenue is dismissed. *** KISHORILAL KISHANLAL SHAH v. INCOME TAX OFFICER
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