Malabar Fisheries Co. v. Commissioner of Income Tax, Kerala

A ###### 'B c D E 696 MALABAR FISHERIES qo., CALICUT _v._ COMMISSIONER OF INCOME TAX, KERALA _September_ 19, 1979 [P. N. BHAGWATI, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.] _Firnz_ _dissolred-Assets_ _distributed_ _among_ partner~Distribution-lf _amounts to transfer_ _of_ _assets within the mecining_ _of_ _expression_ _"otlierlvise_ _transferred"_ _in_ _S._ 34(3) _(b) Income Tax Act_ 1961. _Words and PhraSes-'Trarufer'-Meaning of-Distribution of assets_ _c1nong_ _partners-U_ _[7]_ _hether amounts_ _to_ _transfer-Income Tax_ _Act_ 1961, _S._ _2(4i)._ _The_ appellant, a dissolved firm as originally constituted on April 1, 1959, consisted of four partners: and carried on different business in different names and styles. The firm was dissolved on March 31, 1963 and under the deed of dissolution executed by and between the partners, the first business concern was taken over by one of the partners, the remaining concerns by two of the other partners and the fourth partner received, a sum of money in lieu of his respective shares in the assets of all the businesses of the firm. During the four assessment years 1960-61 to 1963-64 the firm had installed various items of machinery in respect of which it received development rebate in its respective tax assessments under s. 33 of the Acr. On dissolution of the firm on March 31, 1963, the Income-tax Officer took the view that s. 34(3)(b) of the Aot applied on the ground that there was a sale or transfer of the machinery by the firm within the period mentioned in that section and accordingly acting under s. 155(5) of the Act he withdrew the development rebate allowed to the firm for the said assessment years, the amending orders being passed against the dissolved firm. ###### • The appeals preferred by the dissolved firm through one of its erstwhile partners, were dismissed by the Appellate Assistant Commissioner who held F ·thats. 155(5) was rightly resorted to since s. 34(3)(b) of the Act applied to the case. G n The Income-tax Appellate Tribunal allowed the appeals by the dissolved firm holding that there was no question of any sale or transfer within the meaning of s. 34(3)(b) in a transaction involving the adjustment of the rights of the partners of a dissolved firm, but at the instance of the Revenue (Respondent) referred two questions of law to the iHigh Court viz. (a) whether there was only an adjustment of the mutual rights of the partners and the provisions of s. 34(3) were not applicable and (b) whether there was a transfer of assets within the meaning of the words 'otherwise transferred' occurring ins. 34(3) (b) of the Act .. The High Court .answered the second question in the affirmative and against the assessee holding that a dissolution of-a firm amounted to extinguishment of the rights of the firm in the assets of the partnership and accordingly was a transfer within the meaning of s. 2(47) of the Act and that, therefore the provisions,of s. 34(3)(b) applied to the case. A B ###### c D, E F G # ' 4. On a plain reading of s. 34(3)(b) it will appear clear that before that provision can be invoked or applied three conditions are required to be satisfied : '(a) that the· ship, machinery or plant must have been sold or otherwise transferred, (b) that such a sale or transfer must be by the assessee and (c) , that the same must be before the expiry of eight years from the end of the previous year in whicbJ it was acquired or installed. It is only when these three conditions are satisfied that any allowance made under s. 3 3 shall be deemed to have been wrongly made and the Income-tax Officer acting under s. 155(5) .will be entitled to withdraw such allowance. [703 C-DJ 5. Section 2(47) gives an artificial extended meaning to the expression ·'transfer· for, it not merely includes transactions of 'sale' and 'exchange' which in ordinary parlance would mean transfers but also 'relinquishment' or 'extinguishment of rights' which are ordinarily not included in that concept. H03EJ 6. In _Con1missioner_ _of_ _Income-Tax_ v. _Dp.was_ _Cine Corporation,_ 68 I.T.R. :240, the concept of distribution of assets consequent upon the, dissolution of the firm was considered in the context of thie balancing charge· arising under the second proviso· to s. 10(2) (vii) of the 1922 Act. This Court held that the expression "sale or sold" when used in s. 10(2) (vii) and the, second proviso thereto n1usf be understood in their ordinary meaning and that "sale" according to itS; ordinary meaning meant a transfer of property for a price, and further ·enunciated the proposition that the distribution of surplus upon dissolution of a JJartnership after discharging debts and obligations was always by way of adjustment! of rights o'f partners in the assets of the partnership and did not amount to a transfer much less for a price. The· question of raising a balancing charge· agajnst the dissolved firm, a separate taxable entity which had been allowed depreciation in the earlier years, was also considered by the Court and _Jit_ took the view that no balancing charge arose ·a£:ainst the firm inasmuch as no sale or transfer \vas involved in the transaction of distribution of the assets to o<:rstwhile partners of the firm consequent upon its dissolution. [703G, 704 E-G] MALABAR FISHERIES V. C.I.T. 697 Allowing the appeals to this Court, l-JELD : 1. There is no transfer of assets involved even in the sense of any .... ·xtinguishn1cnt of the firm's rights in the partnership assets when distribution takes place upon dissolution. [709 F] 2. Section 34(3) (b) of the Act is not applicable to the case and the view of the Tribunal is upheld. [710 El 3. The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly in common the assets of the· partner ship and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities _1.is_ nothing but a mutual adjustment of rights between the partners and there is no question of any extinguishment of the firm's rights in the partnership 2.ssets :a.mounting to a transfer of assets within the meaning of s. 2(47) of the Act. [709 EJ 7. In _Bankey Lal Vaidya's_ case, 79 I.T.R. 594, the concept of distribution of :assets to the prutners of a firm consequent upon its dissolution was considered H ~n the context of the charge on capital gains arising under s. 128(1) of the 1922 di.ct. This,court·observed that the rights of the parties were adjusted by handing 698 SUPREME COURT REPORTS, (1980] 1 S.C.R. A over to one of the partners the entire assets and to the other partner the money value of his share and such a transaction was neither a sale nor exchange nor transfer of the assets of the Jinn. [704 H, 705 DJ 8. (i) It is well-known that commercial men and accountants on the one hand and lawyers on the other have different notions respecting the nah1re of the firm .. [705 HJ B (ii) Commercial men and accountants are apt to look upon a firm in the light in which lawyers look upon a corporation i.e. as a body distinct from tJie members composing it, and having rights and obligations distinct frcnn those of its members. [706 BJ c D E F G B (iii) The firm is not recognised by English lawyers as distinct from the members composing it. What is called the· property of the firm is their property, and what are called the debts and liabilities of the firm are their debts and their liabilities. [706 G, HJ _Lindley on Partnership_ 12th Edn. pp. 27 and _ZS;_ refierred to. 9. In Eng1ish jurisprudence a firm is only a compendious name for certain persons \vho carry on business or have authorised one or more of their number to carry it on, in such a way that they are jointly entitled to the profits and jointly liable for the, debts and losseS of the business. Further, partnership pro perty is regarded as belonging to the firm, but this is only for the purpose of distinguishing the same from-ihe separate property of the partners. BUt, in law the partnership property is jointly owned by all the partners co'mposing the firm. [707 B-CJ 10. The position as regards the nature of a firm and its property in Indiarr La\v ullder the Indian Partnership Act, 1932 is almost the same as in English· law. Here also a partnership firm is not a distinct legal entity and the partnership- property in law belongs to all the partners constituting the firm. The Indian Act, like the English Act avoids making a firm a corporate body enjoying the right of perpetual succession. [708 B, E] _Bhagwanji Morarji Goculdas_ v. _Alembic_ _Che1nical_ _Works Co. Ltd. and Ors.,_ AlR 1948 PC 100; referred to. 11. _A_ partnership firm under the Indian Partnership Act, 1932 is not a distinct legal entity apart from the partners 'constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property in which all partners have a joint or common interest. [709 C] _Addanki Narayannappa and Anr._ v. _Bhaskara Krishnappa and_ 12 _Ors.,_ [1961J 3 S.C.R. 400, referred to. 12. Every dissolution must in point of time he anterior to the actucl distribution, division or allotment of the assets that takes place- after making accounts and discharging the debts and liabilities due by the firm·. Upon dissolution the firm ceases to exist; then follows~the making of accounts, then the discharge of debts and liabilities and thereupon distribution~ division or allotment of assets takes: place _inter se_ between the erstwhile partners by! way of mutual adjustment of rights between them. ~lbe distribution,. division1 or allotment of assets to· the MALABAR FISHERIES _v._ C.I. T. ( _Tulzapurkar,_ J.) 6 9 9 **erstwhile partners, is not** **d,one** **by** **the dissolved** **firm.** **In** **this sense there is no** **A** **transfer** **of.** **assets'** **by** **the** **as.Sessee** **(dissolved** **firm)** **to** **ari.y** **person.** **[710 Il-Cl** **13. The** **viev.·** **of** **the High Court that** **the** **distribution of assets effected** **by** **a** **deed takes p]ace** _**ea instanti**_ **with the dissolution** **or** **that** **it** **is** **effected by** **the** **dissolved** **firm** **not accepted. (710 D]** CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.. 196-199/ B 73, Appeals by Special Leave from the Judgment and Order dated ·14-7-1972 of the Kerala High Court in Income Tax Reference Nos . 115-l l 8 of 1970. _K._ _S._ _Rainamurthy,_ _P._ _N. Ramalingam_ and _A._ _T._ _M._ _Sampath_ for c the Appellant. ,/ _B. B. Ahuja_ and _Miss_ _A._ _Subhashini_ for the Respondent. ~. The Judgment of the Court was delivered by TuLzAPURKAR, J.-These. appeals by special leave raise an interesting question of law whether the distribution of assets of a firm conse>quent on its dissolution amounts to a transfer of assets within the meaning of the expression "otherwise transferred" occurring in s. 34 (3) (b) of the Indian Income Tax Act, 1961, having regard to the definition of 'transfer' in s. 2 ( 4 7) of \he Act ? The facts giving rise to the question lie in a narrow compass. The appellant (M/s Malabar Fisheries Co.) is a dissolved firm represented by one of its erstwhile partners. The firm as originally constituted on April 1, 1959 consisted of four partners and ~arried on six different business in six different names a11d styles, namely, (a) Malabar Fisheries Co., (b) Coastal Engineering Co., (c) Cochin Tin Factory, (d) Goodwill Industries, all a~ Fallurnthy, (e) Combine Steel Industries at the Industrial Estate at Alavakkot and (f) Lite Metal Industries at Visakhapatnam in Andhra pradesh. The firm was dissolved on March 31, 1963 and under the deed of dissolution executed by and between the partners, the first business concern was taken over by one of the partners, the\ remaining five concerns by two of the other partners and the fourth partner received a sum of Rs. 3,81,082/- in lieu of his respective shares in the assets of all the businesses of the firm. It appears that during the four assessment years 1960-61 to 1963-64 the firm had installed various items or machinery in respect of which it received development rebate in its respective tax assessments under s. 33 of the Act. On dissolution of the firm on March 31, 1963, the Income-tax Officer took the view that s.34 (3) (b) of the Act applied **D** **E** **F** **G** **H** A B c D E F G B 700 SUPREME COURT REPORTS (1980] 1 s.c.R. on the ground that there was, a sale or transfer of the machinery by the firm within the period mentioned in that section and accordingly acl n~ under s. 155 (5) of the Act he withdrew the development rebate allowed to the firni for the said assessment years, the amending orders being passed against the dissolved firm. The asscssee i.e., the dissolved firm through one of its erstwhile partners perferred appeals against the order of the Income-tax Officer withdrawing the development rebate but the Appellate Assistant Commissioner by his order dated July 24, 1964, dismissed the appeals holding that s.155 (5) was rightly resorted to since s. 34 (3) (b) of the Act applied to the case. The matter was carried in further appeals by the dissolved firm to the Income-tax Appellate Tribunal, Cochin Bench, Ernakulam, and it was contended that the distribution of the assets of the firm consequent on its dissolution did not amount to a sale or transfer and, therefore, the transaction would not come within the purview of s. 34 (3) (b). The Tribunal by its common 9rder dated January 6, 1970 allowed the appeals holding that the case fell within the principle laid down by this Court in the case of _Commissioner_ _of Income-tax_ v. _Dewas Cine Cor-_ _poration(')_ and that there was no question od' any sale or transfer within the meaning of s. 34(3) (b) in a transaction involving the adjustment of the rights of the partners of a dissolved firm. At the instance of the Revenue, the Tribunal referred two questions of law to the High Court for its opinion, namely "(1) Whether on the facts and in the circumstances of this case, the Appellate Tribunal was legally correct in holding that there was no question of sale and that it was only an· adjustment of the mutual rights of the partners and that the provisions of section 34(3) were not applicable ? (2) Whether on the facts and in the circumstances of this case, there was a transfer of assets within the meaning of the words 'otherwise transferred' occurring in Section 34(3)(b) of the Income-Tax Act ?" The High Court answered the second question in the affirmative and against the assessee and in view of that answer, declined to answer first question as being unnecessary. The High Court took the view that this Court's decisions in _Dewas Cine Co1poration_ case (supra) and _Bankey Lal Vaidya's(_ _[2]_ _)_ case to the effect that the distribution, division or allotment of assets .between partners of a (I) 68 I. T. R. 240. (2) 79 I. T. R. 594. ##### • , ##### .. ##### E ### _'-.)'_ MALABAR FISHERIES _v._ C.I.T. _(Tulzapurkar,_ J.) 701 fam consequent on its dissolution amounts to a mutual adjustment of rights of the partners and does not amount to a sale or transfer had been rendered under the Income-Tax Act, 1922 wherein the expression 'sale' or 'transfer' had not been defined whereas in the 1961 Act by which the case was governed, the expression 'transfer' .had been defined by s. 2( 47) in a very wide manner so as to include not merely a sale or exchange but also 'extinguishment of any rights' in capital assets. The High Court held that a dissolution of a firm amounted to extinguishment of the rights of the firm in the assets o[ the partnership and accordingly was a transfer within the meaning .of s. 2(47) of the Act and that, therefore, the provisions of s. 34(3) (b) applied to the case. It is this view of the High Court that is being ch~llenged before us in these appeals by the assessee. Counsel for the assessee contented that the High Court has clearly erred in taking the view th11t the dissolution of a firm amounrs to extinguishment of the rights of the firm in the assets of the partnership. He pointed out that in the two decisions referred. to .above this Court has clearly enunciated what happens in law upon the !dissolution of a firm, namely, that the distribution, division or allotment of assets between the partners on dissolution of the firm is merely an adjustment of rights' _inter se_ between them and that no sale or transfer is involved in such distribution, division or allotment. According to him there is no change in this legal position even after the enactment of the definition of 'transfer' ins. 2(47) in the 1961 Act Reference was made to this Court's decision in _C.l.T._ _Gujarat_ v. _R._ _M._ _Amin(')_ where this Court has held that no transfer of capital assets within the meaning of s. 2 ( 47) of ihil 1961 Act was involved when a shareholder rccei,-ed money representing his shares on the distribution of the net assets of the company in liquidation, that he must be regarded as having received that money in satisfaction of the rights which belonged to him by virtue of his holding the shares and that the transaction did not amount to any sale, exchange, relinquishment of capital assets or extinguishment of any rights therein. In any case, he contended that in every case dissolution must be anterior in point of time to the distribution that takes place after making accounts and discharging all debts and liabilities and as such there is no transfer of any assets by the asscssee (i.e. the dissolved firm) to any person as contemplated by s. 34(3) (b), but .all that happens is that upon dissolution and upon making up of accounts and discharge of liabilities it is the erstwhile partners who mutually adjust their rights and it is by way of adjustment of such rights {1) 1061. T. R. 368. A 8 ###### c D E F G H A B c D E 702 SUPREME COURT REPORTS [1980] l S.C.R. that distribution, division or allotment of assets takes place. He, therefore urged thats. 34 (3) (b) was inapplicable to the case. On the other hand, counsel for the Revenue pressed the High Court's view for onr acceptance. He urged that the question has to be considered under the 1961 Act in light of the definition of 'transfer' contained in s. 2 ( 47) which includes within its scope even 'extinguish ment of rights in capital assets'. According to him during the conti'nuance of the partnership the machinery undoubtedly belonged to the firm, the firm as a separate taxable entity got the benefit of development rebate which was sought to be withdrawn inasmuch as the firm's rights in the machinery got extinguished upon dissolution and the same got transferred or vested in individual partner or partners as a result of distribution or allotment. made between them. He stated qua thei erstwhile partners there may not be any transfer of assets and there may be mutual adjustment of rights but qua the firm there iS certainly extinguislunent of its rights in the assets of the partnership and in that sense there is a transfer of assets within the definition under s. 2 ( 47) of the Act. Since in these appeals the qµestion raised relates to the withdraw:i.I of development rebate under s. 34 (3) (b) read withs. 155 (5) of the 1961 Act in the light of the definition of the expression transfer given under s. 2 ( 47) of the Act, it will be desirable to note what these provisions are. Section 34 (3) (b) in so far as is material reads: "34. _Conditions_ _for_ _depreciation_ _allowance and deve-_ _lopment rebate,_ x x x x x ' ######,. F 3 (b) If any ship, machinery or plant is sold or otherwise transferred by the assessee to any person at any time before the expiry of eight years from the end of the previous year in which it was acquired or installed, any allowance made nnder section 33 or under the corresponding provisions of the Indian Income-tax Act, 1922 (XI of 1922), - G in respect of the ship, machinery or plant shall be deemed to have peen wrongly made for the purposes of this Act, and the provisions of sub-section (5) of section 155 shall apply accordingly." Section 155 (5) is a procednral provision enabling the Income-tax H Officer in a case falling under s. 34(3) (b) to recompute the total in. come of the assessee for the relevant previous year and make the necessary amendments; in other words, acting nnder this provision the ~· ' ' MALABAR FISHERIES _v._ C.J.T. _(Tulzapurkar,_ _!.)'_ 703 Income-tax Officer withdraws the development rebate already granted A. by passing an amending order. It further provides that such amending order has to be passed y;ithin a period of 4 years to be reckoned from the end of the previous year in which the sale or transfer took place. Section 2( 47) defines the expression '.'transfer" thus : B·'· "2 ( 4 7) "transfer", in relation to a, capital asset, includes the sale, exchange or relinquishment of the asset or the extinguishment of any rights th~rein or the compulsory acquisition thereof, under any law." On a plain reading of s. 34(3) (b) it will appear clear that before that provision can be invoked or applied three conditions are required to be satisfied: (a) that the ship, machinery or plant must have been sold or otherwise transferred, (b) that such a sale or transfer must be by the asses see and ( c) that the same must be before the expiry of 8 years from the end of the previous year in which it was acquired or installed. It is only when these three conditions are satisfied that any allowance made under s. 33 shall be deemed to have been wrongly made and the Income-tax Officer acting under s. 155 (5) will be entitled to withdraw such allowance. Further, s. 2(47) gives an artificial extended meaning to the expression 'transfer' for,. it not merely includes transactions of 'sale' and 'exchange' which in ordinary parlance would mean transfers but also 'relinquishmenf or 'extinguishment of rights' which arc ordinarily not included in that concept. The question is whether the distribution, division or allotment of assets of a firm consequent on its dissolution amounts .to a transfer of assets within the meaning of the words . "otherwise transferred" occuring in s. 34(3)(b) of the Act, regard being had to the definition of "transfer" contained ins. 2(47) ? To put it pithily, the question is whether the dissolution of a firm extinguishes the firm's rights in the assets of the partnership so as to constitute a transfer of assets under s. 2(47)? In _Dewas Cine Corporation case_ (supra) the concept of distribution of assets consequent upon the dissolution of the firm was consi· dered in the context of the balancing charge arising under the second proviso to s. 10.(2) (vii) of the 1922 Act. In that case two individuals, each of whom owne da cinema theatre, formed a partnership to carry on business of exhibition of cinematograph films, bringing the theatres into· the books of the firm as its assets. For the assessment years 1950-51 _to_ 1952-53 the Income Tax Officer allowed depreciation aggregating to Rs. 44,380/- in the assessment of the .firm in respect of the two theatres. On the dissolution of the firm on September 30. E G H #### .. ##### • ####,. _A_ **11** 704 SUPREME COURT REPORTS [1980] 1 S.C.R. 1951, the theatres were returned to their original qwners. In the books of the firm the assets were shown as taken over at the original price less the depreciation allowed,_ the depreciation being equally divided between the two erstwhile partners. The Tribunal took the view that by restoring the theatres to the original owners there was a transfer by the partnership and the entries adjusting depreciation and. writing off the assets at the original value amounted to total recoupment of the entire depreciation by the partnership and on that account the balancing charge arose under the second proviso to s. 10(2) (vii) of the Act. This Court held that on the dissolution of the partnership, each theatre had to be deemed to be returned to the original owner in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and. other obligations. But thereby the theatres were not in law sold by the partnership to the individual partners in consideration of their respective shares in the residue, and, therefore, the amount of Rs. 44,380/- could not be included in ~he total income of the partnership as a balancing charge arising under the second proviso to s. 10(2)(vii). It is true that this Court was concerned with interpreting the expression "sold" used in s. 10(2) (vii) and the. second proviso thereto, when the expressions "sale or sold" had nowhere been defined in the Act, and, therefore, this Court held that those expressions when used in s. 10(2) (vii) and the second proviso thereto must be understood in their ordinary meaning and ~hat "sale" according to its ordinary meaning meant a transfer of property for a price. This Court further enunciated the proposition that the distribution of surplus upon dissolution of a partnership after discharging its debts and obligations was always by way of adjustment of rights of partners in the assets of the partnership and did not amount to a transfer much less for a price. It is significant to note. that the question of raising a balancing charge against the dissolved firm, a separate taxable entity which had been allowed depreciation in the earlier years, was considered by this Court and this Court took the view that no balancing charge arose against the **firm** **inasmuch** **as** **no sale or transfer was involved in the transaction** **of** distribution of the assets to erstwhile partners of the firm consequent upon its dissolution. In _Bankey Lal Vaidya's_ case (supra) the concept of distribution of assets to the partners of a firm consequent upon its dissolution was considered in the context of the charge on capital gains arising under s. 128 ( 1) of the 1922 Act. In that case the respondent assessee, the Karta of a Hindu undivided family, entered into a partnership with D to .carry <Oll bm;iness of manufacturing and selling pharmaceutical MALABAR FISHERIES _v._ C.I.T. _(Tulzapurkar,_ _J.)_ 705· products and literature relating thereto. On the dissolution of the partnership, its· assets, which included goodwill, machiuery, furniture, medicines, library and copyright in respect of certain publications, were valued at Rs. 2,50,000. Since a large majority of assets was incapable of physical division, it was agreed that the assets be taken over by D and the respondent assessee be paid his share of the value of the assets iu money and accordingly he was paid Rs. 1,25,000/-. The question was whether the sum of Rs. 65,000/-, being part of the amount received by the respondent assessee could be brought to tax as capital gains under s. 12B(l) of the Act? Tbis Court held that the arrangement between the partners of the firm amounted to a distribution of the assets of the firm on dissolution, that there was no sa\e or exchange of the respondent's share in the capital assets to D, nor did he transfer his share in the capital assets and, therefore, the sum of Rs. 65,000/- could not be taxed as capital gaius. The Court observed that the rights of the parties were adjusted by l)andi.ng over to one of the partners the entire assets and to the other partner the money value of bis share and such a transaction was neither a sale nor exchange nor transfer of as~ets of the, firm. It cannot, however, be disputed that both these decisions were rendered under the 1922 Act which did not define expressions like A. B D· F' ~. "sale" or "transfer" and the question is whether any difference is made iu the legal position under the 1961 Act by reason of the enactment of the definition of the expression "transfer" in s. 2(47), which includes within its scope a transaction by way of 'extinguishment of any rights in a capital asset' ? The precise argument which has been advanced. by the counsel for the Revenue before us, and which found favour with the High Court is that during the continuance of the partnership the machiuery belonged to the firm, that thf: firm as a tax" "" a!le entity received the benefit of tlevelopmcnt rebate in respect there###### ~ of under s. 33 of the Act and that upon dissolution the firm's rights . \' in the machinery got extiuguished and became vested in the partner or # • .,., ·~rs to whom it ':"as allotted in the dis~ribution of assets, and, therefore; the tran§achon so far as the firm 1s concerned amounts to a 4 transfer of as~ 1mder s. 2 ( 4 7). The question is how far is it correct to say that in law the .fitm ;ts such has rights in the partnershil' assets liable to extinguishment upon ~lliolution ? - · It is well-known that commercial men and accountants on the one ff. hand and lawyers on the other have di.fferent notions respecting the nature of the firm and this difference between the mercantile view and: 706 SUPREME COURT REPORTS [1980]' l S.C.R. · . . the legal view has been explained in _Lindley on Partnership._ 12th Edn. at pages 27 and 28 thus : "Partners are call~d collectively a firm. Merchants and lawyers have different notions respe_cting the nature of a firm Commercial man and accountants are apt to look upon a firm in the_ light in which lawyers look upon a corporation i.e., as a body distinct from the members composing it, and having rights and obligations distinct from those of its members. Hence, in keeping partnership accounts, the firm is .made debtor to each partner for what he brings into the common stock, and each partner is made debtor to the firm for all that he takes out of that stock. In the mercantile vie~v, partners are never indebted to each other in respect of partnership transactions; but are always i:ither debtors to or creditors of the firm. - Owing to this impersonification of the firm, there is a tendency to regard its rights and .0bligations as unaffected by the introduction of a new partner', or by the death or r~tire­ ment ·of an old one. Notwithstanding such changes among its **members, the ·firm is** **considered** **as continuing the** **s:ime;** and the .rights and obligatiq_ns of the old firm are regarded as. continuing ir1 favour of or against the new firm as if no changes had occurred. The partners are the agents and sureties of the firrn, its· agent for the transaction of its business, its sureties for the liquidation of its liabilities so far as the assets of the firm are insufficient. to meet them. . The liabilities of the firm are regarded as the liabilities of the. ; partners only in case they cannot be met by the firm and di!l- < charged out of its assets. 1 [, . ] _[i ]_ But this is not the legal notion of a firm. _The·_ _firm_ _1:;:;i'ot_ _ """ _recognised_ _by English lawyers. as d;stinct from the members_ _c;:7'_ _-'('_ _composing it._ In taking partnership accou~ts and in adminis- . ; _!-....,._ ###### tering partnership assets, Courts have to some extent adopted ;" · -·- .,,,,__ 'the mercantile view, and actions may now, speaking gen?rally, -' _.:;,;_ - ·• be brought by or against partners in the name of their.ft;m: _.., ' .. but speaking generally, the firrn as such has nq·\~g;.1 recognition. The law, ignoring the firm, !oolcs lo the partners composing it; any change amongst them destroys the identity of the firm; _what is called the property_ _of the firm is their_ **-I;** _property, and what are called the debts and liabilities_ _of the_ _firm_ _are theirdebts and their liabilities._ In poinf'of Jaw, a partner may be the debtor or the creditor of his co-partners, ## • **·C** . **(i'** **.G** ###### **·e** .\ MALABAR FISHERIES _v._ C.l.T. _(Tulzapurkar,_ _!.)_ 707 but he caunot be either debtor or creditor of the firm of A which he is himself a member, n.or can he be employed by his firm, for a man cannot be his own employer". (Emphasis supplied). Unlike the Scottish system of law where the firm is a legal person distinct from the partners composing it, the English Partnership Act, **B** 1890, avoids making a firm a distinct legal entity. In English jurisprudence a firm is only a compendious name for certain persons who carry on business, or have authorised one or more of their number to carry it on, in such a way that they are jointly entitled to the profits and jointly liable for the debts and losses of the business. Further, it is true that partn.ership property is regarded as belonging to the firm, but **C** that is only for the purpose of distinguishing the same from the separate property of the partners, But, in law the partnership property is jointly owned by all the partners composing rhe firm. In Lindley on Partnership at page 359 the following statement of law occurs : "The expression partnership property, partnership stock, **D** partnership assets, joint stock, and joint estate, arc used indiscriminately to denote everything to which the firm, or in other words all the partners composing .it, ran be considered to be entitled as such." Again at page 375 the following statement of Jaw **occurs** _:_ "In the absence of a special agreement to that effect, all the members of an ordinary partnership are interested in the whole of the partnership property, but it is not quite clear whether they are interested therein as tenants in common, or as joint tenants without benefit of survivorship, if indeed there is any difference between the two. It follows from this community of interest that no partner has a right to take any porti<:in of the partnership property and to say that it is his exclusively. No partner has any such right, either during the. existence of the partnership or after it has been dissolved." As regards the nature of a share of a partner in a firm the following passage in LindlrY on Partnership at page 375 brings out legal position very clear! y : "What is meant by the share of a partner in his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and **E** **F** **G** **H** B ##### c D E 708 SUPREME COURT REPORTS [1980] 1 S.C.R, liabilities have been paid and discharged. This it is, and this only, which on the death of a partner passes to his representative, or to a legatee of his share. . . . . . . . . . and which on his bankruptcy passes to his trnstee." The position as regards the nature of a firm and its property in Indian law under the Indian Partnership Act, 1932 is almost the same as in English law. Here also a partnership firm is not a distinct J.egal entity and the partnership property in law belongs to all the partners constituting the firm. In _Bhagwanji Morarji Goculdas_ v. _Alembic Chemical_ _Works Co. Ltd. and Others(')_ the Privy Council in para 10 of the judgment observed thus : "Before the Board it was argued that under the Indian Partnership Act, 193 2, a firm is recognised as an entity apart from the persons constituting it, and that the entity continues so long as the firm exists and continues to carry on its business. It is true that the Indian Partnership Act goes fnrther than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it; the law in India in that respect being more in accordance with the law of Scotland, than with that of England. But the fact that a firm possesses a distinct personality does not involve that the personality continues unchanged so long as the business of the firm continues. _The_ _Indian Act, like the English Act, avoids making a_ _firm_ _a_ _corporate body enjoying the right_ _of_ _perpetual succession."_ (Emphasis supplied) . F G H It is true that under the Civil Procedure Code Order XXX, as under the English Rules of Court, actions may be brought by or against partners in the name of the firm and even between firms and their members but that is only a matter of procedure. It is also true that the firm's property is recognised in more than one way (ss. 14 and 15 of the Partnership Act) but only as that which is "joint estate" of all the partners as distinguished from the "separate estate" of any of them, and not as belonging to a body distinct in law from its members. In _Addanki Narayanappa_ & _Anr._ v. _Bhaskara Krishnappa and_ 13 Ors.( [2] ), this Court after quoting with approval the aforementioned passages occurring in Lindley on Partnership, 12th Edn ..• made the foUowing observations in the context of partners' right during the subsistence as well as upon the dissolution of a firm.: (I) A. I. R. 1948 P. C. 100. (2) (1966] 3 S. C. R. 400 MALABAR FISHERIES _v._ C.l.T. _(Tulzapurkar,_ _J.)_ 709 "No doubt since a firm has no legal existence, the part- A nership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no-. partner can deal with any portion of the pri1pcrty as his own· nor can he assign his interest in a specific item of property to any one; His right is to obtain such profits, if B any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in cl. (a) and sub-els. (i), (ii) and (iii) of cl. (b) of s. 48." - Having regard to the above discussion, it seems to us clear that a partnership firm under the Indian Partnership Act, 1932 is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property er firm's assets all that is meant is property or assets in which all partners have a joint or common interest. If. that be the position, H is difficult to accept the contention that upon dissolution the firm's rights in the partnership assets are extinguished. The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly - in common the assets of the partnership and, therefore, the consequence of the distribution, division or allotment of assets to the partners· which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and there is no question of any extinguishment of the firm's rights in the partnership assets amounting to a transfer Q_f assets within the meaning of s. 2( 47) of the Act. In our view, therefore, there is no transfer of assets involved even in the sense of any extinguishment of the firm's rights in the partnership assets when distribution takes !JlaCc upon dissolution. CotmSel for the Revenue referred us to a decision of the Karnataka High Court in _Additional Commissioner_ _of_ _Income-tax_ _v._ _M._ _A._ _J._ _Vasanaik(''),_ where that Court has taken the view that when individual assets are brought in a partnership firm so as to constitute the partnership property, there is a transfer of interest of the individual to the partnership and ss. 34(3) (b) and 155(5) of 1961 Act arc attracted. In the first instance, that decision dealt with the cnnversc case and it does not necessarily follow on parity of reasoning that the distribution, division or allotment of partnership assets to partners of a firm t!pon its dissolution would amount to a transfer of assets as was sought to be eontended by the counsel for the Revenue. Secondly, it is unnecessary (I) 116 I. T. R. 110 9-6Z5SCI/79 c D E F G H 710 SUPREME COURT REPORTS [1980] 1 S.C.R. A for us to express any opinion on the correctness or otherwise of the view taken by the Karnataka High Court in that case. n c D There is yet another reason for rejecting the .i;ontention of the counsel for the Revenue and that is that the second condition required to be satisfied for attracting s. 34(3)(b) cannot be mid to have been satisfied in the case. It is necessary that the sale or transfer of a·ssets must be by the assessee \o a person. Now every dissolution must in point of time be anterior to the actual distribution, division or allotment of the assets that takes place after making accounts and discharging the debts and liabilities due by the firm. Upon dissolution the firm ceases to exi5t; then follows the making up of accounts, then the discharge of debts and liabilities and therfupon distribution, division or allotment of assets takes place _inter_ _se_ between the erstwhile partners by way of mutual adjustment of rights between them. The distribution, division or allotment of assets to the erstwhile partc ners, is not done by the dissolved firm. In this sense there is no transfer of assets by the assessee (dissolved firm) to any person. It is not possible to accept the view of the High Court that the distribution of assets effected by a deed takes place _eo_ _instanti_ with the dissolution or that it is effected by the dissolved firm. In the result we are clearly of the view that s. 34(3) (b) of the Act was not applicable to the case and we uphold the view of the E Tribunal. The appeals are, therefore, allowed and the .Revenue will pay the costs of the appeals to the appellant. N.V.K. _Appeals_ _allowed._