Income Tax Appellate Tribunal Ahmedabad Deputy Commissioner Of IncomeTax vs Coal Ash Distributors on 29 January, 1996 Equivalent citations: [1996]58ITD58(AHD) ORDER Shri B.M. Kothari, Accountant Member 1. These two appeals by the revenue for assessment years 198788 and 198889 and the third appeal by the assessee for assessment year 198990 raised a couple of interesting questions of law as well as facts for our consideration. Since these appeals involve consideration of common and interconnected points, these are being disposed of by this common order. 2. The appellantfirm is carrying on the business as a subcontractor for removing coal ash from Kalyan Power House, Thuurah dist., Thane. All these appeals relate to refusal to grant registration to the firm under section 185(1)(b) of the Incometax Act, 1961 (hereinafter referred to as the Act). 3. In assessment year 198788 the assesseefirm submitted an application for grant of registration in the prescribed Form No. 11 along with copy of partnership deed dated 1885 to the Assessing Officer (hereinafter referred to as the Assessing Officer) on 7111985. Clause7 of the partnership deed provides that profits and losses (including capital profits and losses) shall be divided between the partners in the following shares : Name of Partners Share in Profit Loss 1. Shri Bhikhoobhai Nagindas Shah 7.33% 2. Shri Kantilal Chandulal Shah as Karta of his HUF 8.33 1/2% 3. Shri Maheshbhai Nagindas Shah 7.45% 4. Shri Babubhai Chimanlal Shah as Karta of his HUF 8.00% 5. Smt. Namitaben Virendrabhai Shah 7.67% 6. Shri Raj Bhikhoobhai Shah as a member representing Shri Sukun Enterprise (AOP) 8.00% 7. Smt. Maltiben Dineshbhai Shah 7.44% 8. Smt. Ashaben Jayendrabhai Shah 7.45% 9. Smt. Kalpanaben Kamleshkumar Shah 8.66% 10. Shri Umesh Kantilal Shah 8.33 1/2% 11. Shri Vipool Bhikhoobhai Shah as a member representing Shri Roosabha Associates (AOP) 8.00% 12. Shri Dipakbhai Anubhai Shah 3.00% 13. Shri Jagdishbhai Kantilal Shah 2.00% 14. Shri Bimalbhai Jagdishbhai Shah 3.33% 15. Shri Rajendra Chandulal Mahta 1.33% 16. Smt. Vimlaben Nagindas Shah 2.67% 17. Shri Amratlal Maganlal Patel as Karta of his HUF of Shri Jai Vijay Maganlal Virchanddas 1.00% 100.00% 4. The Assessing Officer in the consolidated order passed under section 143(3) and under section 185(1)(b) for assessment year 198788 has given elaborate reasons to support his conclusion that the assesseefirm is not entitled to grant of registration under the provisions of the Act. The main reason for refusal to grant registration is that the two A. O. Ps. also joined as partners in the said firm but the application for registration was not accompanied with Form No. 12A as required by Explanation to section 185 of the Act. The Assessing Officer further observed that the Articles of Association of the two AOPs, inter alia, revealed that each of the two AOPs namely M/s. Sukoon Enterprises and M/s. Rooshabh Associates consisted only of two members each. One of the two members was major and the other member was a minor represented by his guardian. The major member of the AOP had only 5% share while the minor member of AOP had 95% in the profits and losses of the said AOPs. The Articles of Association of the said AOPs inter alia provided that each member of the AOP shall be jointly and severally liable for all the liabilities of association and no member can act as an agent on behalf of any other member. The Assessing Officer was, therefore, of the opinion that Explanation part (b) of section 185(1) was, therefore, attracted in this case and the assesseefirm had to communicate to the Assessing Officer in the prescribed manner, i.e., in Form No. 12A about the representatives of AOP as being benamidar of their respective AOP. Furthermore he was of the opinion that all the members of the AOP did not sign the partnership deed nor Form No. 11 and Form No. 12A was also not signed and filed by the firm. In view of these reasons, he refused to grant registration to the firm. The Assessing Officer relied upon the judgments referred to in the order passed by