Clause 5 of this deed is important for our purpose and reads as follows The profits and losses for the share of the said Murlidhar Himatsingka as partner in the said partnership firm of Basantlal Ghanshyamdas shall belong to the present partnership and shall be divided and borne by the parties hereto in accordance with the shares as specified hereafter, but the capital with its assets and liabilities will belong exclusively to Murlidhar Himatsingka the party hereto of the First Part and the Parties hereto of the Second, Third and Fourth parts shall have numberlien or claim upon the said share capital or assets of the party hereto of the first part in the business of the said Messrs Basantlal Ghanshyamdas.
under the name and style of Fatehchand Murlidhar at 14/ 1, Clive Row and 71, Burtolla Street, Calcutta.
Party hereto of the Second Part Four annas Madanlal Himatsingka .
Appeals by special leave from the judgment and order dated August 1, 1962 of the Calcutta High Court in Income tax Reference Nos.
Party hereto of the Third Part Three annas Radhaballav Himatsingka .
On December 21, 1949, a deed of partnership was executed by the said Murlidhar Himatsingka and his two sons, Madanlal Himatsingka and Radhaballav Himatsingka and a grandson named Mahabir Prasad Himatsingka.
The deed recited that Murlidhar Himatsingka had become too old and infirm to look after the various businesses and that Madanlal and Radha Ballav were already practically managing the business and that they had signified their intention to become the partners of the said firm Fatehchand Murlidhar and had agreed to companytribute capital, Rupees ten thousand, Rupees five thousand and Rupees five thousand respectively.
The Appellate Tribunal heard this appeal together with the two appeals filed by M s Fatehchand Murlidhar.
Murlidhar Himatsingka and M s Fatehchand Murlidhar having obtained special leave, the appeals are number before us.
He was also a partner in the registered firm, Messrs Basantlal Ghanshyamdas having /2/8 share.
Murlidhar Himatsingka appealed to the Income Tax Appellate Tribunal.
20 and 21 of 1959.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
21 of 1959, made at the instance of Murlidhar Himatsingka.
Murli dhar Himatsingka was carrying on business in shellac, jute, hessian etc.
21 of 1959 was made at the instance of Shri Murlidhar Himatsingka.
The Appellate Tribunal, agreeing with the views of the Appellate Assistant Commissioner, dismissed the appeal.
K. Sen, S. C. Mazumdar and J. Datta Gupta, for the appellants.
In the former reference the question referred was whether on the facts and in the circumstances of the case, the income of Murlidhar Himatsingka for his share in the firm of Messrs. Basantlal Ghanshyamdas for the assessment years 1952 53 and 1953 54 was rightly excluded from the income of the applicant firm.
In the latter reference the question referred was whether on the facts and circumstances of the case the income of Murlidhar Himatsingha for his share in the firm of Messrs. Basantlal Ghanshyamdas for the assessment year 1955 56 was rightly included in his personal assessment for that year.
M. Hazarnavis, R. Ganapathy Iyer and R. N. Sachthey, for the respondent.
1108 to 1110 of 1964.
Party hereto of the Fourth Part Three annas Mahabirprasad Himatsingka .
One of the references Income Tax Reference No.
20 of 1959 was made at the instance of M s Fatehchand Murlidhar, and the other Income Tax Reference No.
It is sufficient to take the facts from the statement of the case in Income Tax Reference No.
The parties further agreed to become and be partners in the business mentioned in the deed.
The Judgment of the Court was delivered by Sikri, J. These appeals by special leave are directed against the judgment of the High Court of Calcutta in two cases referred to it by the Income Tax Appellate Tribunal, Calcutta Bench, under s. 66 1 of the Indian Income tax Act XI of 1922 hereinafter called the Act .
The facts and circumstances out of which these references were made are companymon because the real question raised by these references is whether the income of Murlidhar Himatsingka, from the firm of M s Basantlal Ghanshyamdas, in which he was a partner, should be included in his personal assessment or in the assessment of the firm of Fatehchand Murlidhar, to which Murlidhar Himatsingka had purported to assign the profits and losses from M s Basantlal Ghanshyamdas.
Clause 10 provides The Profits and losses if any of the partnership including the shares of the profits and losses of the said partnership firm of Basantlal Ghanshyamdas aforesaid shall be divided and borne by and between the parties in the following manner Party hereto of the First Part Six annas Murlidhar Himatsingka .
