S. Parvathammal vs Commissioner of Income Tax

Ratnam, J.—The assessee in this case is an individual. One Ramalingam Pillai and Subramania Pillai, the husband of the assessee, entered

into a deed of partnership on July 22, 1945, for the purpose of carrying on business in the manufacture and sale of certain medicinal products

under the firm name of South India Manufacturing Company and that business was so carried on and conducted. Subramania Pillai died on

February 19, 1972. By another deed of partnership dated February 23, 1972, entered into between Ramalingam Pillai and the assessee, the

assessee became a partner of the firm ""South Indian Manufacturing Company"". Her capital contribution was stated to be that amount which stood

to the credit of her deceased husband, Subramania Pillai, in the capital account of the firm as on February 19, 1972. For the assessment year

1973-74, the assessee returned a loss of RS. 1,52,098 claiming that she had succeeded to the business of her husband by inheritance and that the

loss amounting to Rs. 2,01,344 sustained in that business should be set off. The Income Tax Officer allowed only a sum of Rs. 4,338 as set off,

being the prior year''s business loss and disallowing the balance, completed the assessment. Aggrieved by this, the assessee went on appeal before

the Appellate Assistant Commissioner contending that she was entitled to set off the loss of her deceased husband, as she had succeeded to her

husband''s interest in the partnership. The Appellate Assistant Commissioner viewed the matter as one falling u/s 78(2) of the Income Tax Act,

1961 (hereinafter referred to as ""the Act""), and relying upon the decision in Commissioner of Income Tax, Bombay City Vs. Baimaniben, allowed

the appeal, directing the set off of the loss of Rs. 2,01,344 against the income and the carry forward of the balance. The Revenue carried the

matter on further appeal to the Tribunal. On a consideration of the provisions in the deed of partnership dated February 23, 1972, the Tribunal

took the view that the assessee had become a partner only by a fresh contract with the erstwhile partner and that she did not succeed to her

husband by inheritance. In that view, section 78(2) of the Act was held to be inapplicable and the assessee was held not entitled to set off and

carry forward the loss of her deceased husband in the partnership, in which he was a partner, till his death. The order of the Appellate Assistant

Commissioner was, therefore, set aside and that of the Income Tax Officer was restored.

Aggrieved by this, the assessee has come up before this court on a reference u/s 256(1) of the Act on the following question of law :

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was not entitled to claim set off of

business loss of Rs. 2,01,344 relating to the assessment years 1969-70 to 1972-73 incurred by the assessee''s husband against the business

income of Rs. 88,977 of the assessment year 1973-74 u/s 78(2) of the Income Tax Act, 1961 ?

The learned counsel for the assessee contended that the husband of the assessee was initially a partner till his death on February 19, 1972, and on

his death intestate, his interest in the partnership devolved on the assessee, her son and daughter and the assessee had within about three days after

the death of her husband, became a partner of the firm by virtue and in recognition of having inherited, at least in part, her husband''s interest in the

erstwhile partnership and, therefore, section 78(2) of the Act would be attracted. It was also the further contention of the learned counsel that it

would suffice to fulfil the requirements of section 78(2) of the Act if the business was factually carried on by the heir of the deceased partner with a

liability to be taxed on its profits. In support of these contentions, learned counsel invited our attention to the decisions in CIT v. Bai Maniben

[l960] 38 ITR 80; Commissioner of Income Tax, Bombay City-I Vs. Shamsunder Juthalal (Deceased), and Commissioner of Income Tax, Gujarat

Vs. Madhukant M. Mehta, and Executors of the Estate of J. K. Dubash v. CIT [1951] 19 ITR 182. On the other hand, the learned counsel for

the Revenue submitted that the main thrust of section 78(2) of the Act is not to allow set off and carry forward of the loss, unless the assessee had

succeeded to the business by inheritance, which was really in the nature of an exception to the general rule of disallowance and that in this case,

though there has been a succession to the business of the erstwhile partnership, such succession was by another partnership which came into being

subsequently consisting of the assessee and another partner of the dissolved partnership and not by inheritance and, therefore, section 78(2) of the

Act Will be inapplicable. A further submission made by learned counsel for the Revenue was that in this case the erstwhile partnership consisted of

only two partners and that on the death of one of them, the partnership stood dissolved and that would be the position even if the terms of the

partnership deed provided for the contra and the assessee in such a situation could only work out her rights in the net surplus assets of the

dissolved partnership, but that she cannot claim to have become a partner in the partnership by inheritance. Our attention in this connection was

drawn to the decisions in Mt. Sughra and Others Vs. Babu, ; M.S.V. Narayanan Chettiar Vs. M.S.M. Umayal Achi, and Commissioner of

Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Seth Govindram Sugar Mills, . Commissioner of Income Tax, Gujarat Vs. Madhukant

M. Mehta, relied on by the assessee was distinguished by the learned counsel for the Revenue on the ground that that decision dealt with a

situation where all the legal representatives of a deceased proprietor of a business had succeeded to and carried on the business as such and

subsequently had formed a partnership. According to the learned counsel for the Revenue, the decision in Commissioner of Income Tax Vs. Smt.

Saroj Agarwal, would clinch the issue in favour of the Revenue.

Before we embark upon a consideration of these rival submissions, it would be necessary to refer briefly to the terms of the deed of partnership

between Ramalingam Pillai and Subramania Pillai, the husband of the assessee, in the first instance and between Ramalingarm Pillai and the

assessee subsequently. Annexures E and F to the statement of the case contain the deeds of partnership dated July 22, 1945, and February 23,

1972, respectively. The deed dated July 22, 1945 after referring to the carrying on of the business by Ramalingam Pillai and Subramania Pillai

(husband of the assessee) from 1937 onwards proceeded to state that the business of the partnership shall be preparation and sale of certain

medicines and agency business known as United Medical Agencies and that the firm name shall be ""The South Indian Manufacturing Company"".

Clause(3) provided that the business shall continue until determination. The other clauses are not necessary for purposes of this case. It is

significant to note that there is no provision to the effect that despite the death of one of the partners, the partnership shall be deemed to continue.

Nor is there any provision that the surviving partner can continue the partnership business as before by taking in the legal representative of a

deceased partner. What will be the effect of such clauses, even if they were there, we shall advert to later in the course of this judgment. In the

deed of partnership dated February 23, 1972, entered into between Ranlalingam Pillai and the assessee, after referring to the carrying on of the

business in partnership between Ramalingam Pillai and the deceased, Subramania Pillai, the husband of the assessee, from 1945 onwards in

accordance with the terms of a deed of partnership dated February 27, 1945, the death of Subramania Pillai on February 19, 1972, has been

referred to and it is further stated that as a result of the death of Subramania Pillai, the partnership was dissolved. Regarding the capital contribution

of the assessee, clause (4) of the deed of partnership dated February 23, 1972, provided that the amount that stood to the credit of the deceased,

Subramania Pillai, in his capital account in the books of the dissolved partnership as on February 19, 1972, shall be placed to the credit of the

assessee as her share of capital under the partnership deed of February 23, 1972. It is in the backdrop of the aforesaid provisions in the

partnership deed that the applicability of section 78(2) of the Act and the claim of the assessee to set off and carry forward the loss have to be

considered.

Section 78(2) of the Act runs as follows :

Where any person carrying on any business or profession has been succeeded in such capacity by another person otherwise than by inheritance,

nothing in this Chapter shall entitle any person other than the person incurring the loss to have it carried forward and set off against his income.

The underlying general principle is that the right of carry forward and set off of loss is confined only to the person who has actually suffered the loss

and not others. Section 78(2) of the Act recognises an exception. That enables the legal representatives of a deceased person succeeding to the

business of the deceased by inheritance and carrying on the business in such capacity to claim the right of carry forward and set off of loss. Before

the benefit of section 78(2) of the Act can be availed of, it is necessary to establish succession to the business or profession of one person by

another by inheritance. If such succession is by a mode other than inheritance, then section 78(2) may not apply. The assessee in this case is only

one of three heirs of her deceased husband. It cannot, therefore, be assumed that in such capacity she had succeeded to the interest of her

deceased husband in the partnership constituted under the terms of the partnership deed dated July 22, 1945 At least as regards 2/3rds share in

the interest of the deceased in the partnership constituted under the deed of partnership dated July 22, 1945, the assessee cannot claim to have

succeeded to that interest of her husband. In other words, the assessee cannot be heard to project a claim that she had become entitled to the

entirety of her deceased husband''s interest in the partnership by inheritance, especially when there is no dispute that the assessee has a son and a

daughter, who will also be Class I heirs along with the assessee under the Hindu Succession Act, 1956. Apart from this, the legal impact of the

provisions of the Indian Partnership Act, 1932, would also render the claim of the assessee as one not based on any inheritance but relatable one

to a contract. On the death of the husband of the assessee on February 19, 1972, the partnership stood dissolved as it consisted of only two

persons. u/s 42(c) of the Indian Partnership Act, 1932, a firm is dissolved by the death of a partner, though this is stated to be subject to a contract

between the partners. In this case, there is no contract to the contra in the partnership deed dated July 22, 1945. Even on the footing that there

was such a contract, as we shall presently see, on the death of one of two partners of a partnership, the firm automatically came to an end and

there was no partnership which survived thereafter and into which a third party including the heirs of a deceased partner could be introduced. It

may perhaps be that out of respect for the wishes of or even owing to the earlier directions of a deceased partner, the surviving partner may take in

and enter into a fresh partnership with the heir or heirs of a deceased partner; but that would again be a new partnership based on contract and not

referable to inheritance. Section 31 of the Partnership Act provides that no person shall be introduced as a partner into a firm without the consent

of all the existing partners and this again is subject to a contract between the partners and the provisions of section 30 of the Indian Partnership

Act, 1932. The concept of introduction of a third party into a partnership contemplates the subsistence of a partnership. With reference to a

partnership of two persons which stands dissolved on the death of one of them, it can have no application, for there is no partnership into which a

new partner can be inducted without the consent of the other partners. Bearing in mind these considerations flowing from the provisions of the

Indian Partnership Act, 1932, it would at once be obvious that on the death of Subramania Pillai on February 19, 1972, intestate, the partnership

which consisted of Ramalingam Pillai and Subramania Pillai stood dissolved. The subsequent taking in of the assessee as a partner under the terms

of the partnership deed dated February 23, l972, was only as a result of the entering into of a new partnership between Ramalingam Pillai and the

assessee. In other words, there was no question of the assessee having stepped into the shoes of the deceased, Subramania Pillai, by reason of her

having inherited his interest in the partnership. Besides, as noticed earlier, in a case where a partnership consists of two partners, on the death of

one of them, the partnership stands dissolved and, thereafter, there is no question of the legal representative of the deceased partner stepping into

his place and attaining the status of a partner. Indeed, to recognise such a situation would have the effect of almost compelling the surviving partner

of a dissolved partnership to take in the legal representative of the deceased partner, even against his wishes and that would be the negation of the

very basis of partnership which is traceable to a contract between the parties. We may also mention that partnership is not a matter of heritable

status, but purely one of contract and no heir of a deceased partner can claim to have become a partner without the consent expressed or implied

of the other. Further, under the provisions of section 46 of the Indian Partnership Act, 1932, on the dissolution of a firm, every partner or his

representative as against the other partners or their representatives, has the right to have the property of the firm applied in payment of the debts

and liabilities of the firm and to have a distribution of the surplus amongst the partners or their representatives, according to their rights. The right,

therefore, of a legal representative of a deceased partner in a partnership consisting of two partners which is dissolved on the death of one of them,

would only normally be the right conferred by section 46 of the Indian Partnership Act, 1932, referred to earlier.

And now we notice a few decisions on the aforesaid facets of the matter. Mt. Sughra and Others Vs. Babu, considered the effect of death of one

of two partners in a partnership. The position in such cases was summed up by Justice Agarwala at page 507 thus :

The general rule is that a partnership is dissolved after the death of a party. This rule is, however, subject to a contract to the contrary. When it is

said that a partnership will not be dissolved by the death of one party, what is meant is that the partnership will continue between the surviving

partners, even after the death of a partner. It follows that in order that the exception to the general rule may apply, the original partnership must

consist of more than two partners. In the case of a partnership consisting of only two partners, no partnership remains on the death of one of them

and, therefore, it is a contradiction in terms to say that there can be a contract between the two partners to the effect that on the death of one of

them, the partnership will not be dissolved, but will continue. Nor is the position affected by bringing in the heirs of the deceased partner on the

scene. One partner, cannot, by his own contract, impose a partnership upon his heirs or legal representatives. Partnership is not a matter of status;

it is a matter of contract. No heir can be said to become a partner with another person without his own consent, express or implied.

When, however, there are more than two partners and when there is a contract between the partners that the partnership will not be dissolved by

the death of one of them, the old partnership continues as between the surviving partners and the heirs, if they come in, may come in place of the

deceased partner and become partners upon the old terms. In such a case, it will not be a new partnership, but will be treated as the old

partnership which continues without a break.

To similar effect is the decision in M.S.V. Narayanan Chettiar Vs. M.S.M. Umayal Achi, . Ramachandra Iyer J., as he then was, observed thus

(headnote of M.S.V. Narayanan Chettiar Vs. M.S.M. Umayal Achi, :

It is no doubt true that the death of a partner in most cases would dissolve the partnership. But that rule is subject to any contract to the contrary

between the partners. If the intention of the partners was that the death of one of them was not to result in the dissolution of the firm, such an

agreement could be given effect to. In such cases, the partnership as between the surviving partners will continue. There may also be cases where

under the agreement between the original partners, the legal representatives of the deceased partner may be entitled to join in the firm in the shoes

of the deceased partner. But the application of this rule will be difficult in the case of a firm composed only of two partners. In that case, if one of

the partners died, there will not be any partnership existing to which the legal representatives of the deceased partner could be taken in. In such a

case, the partnership would come to an end by the death of one of the two partners, and if the legal representatives of the deceased partner joins in

the business later, it should be referable to a new partnership between them.

The Supreme Court in Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Seth Govindram Sugar Mills, had occasion to

consider this very question. A sugar mill was owned by a Hindu undivided family consisting of two branches and after a partition, the two kartas

entered into a partnership in 1943 with a view to carry on the business of the sugar mill. The deed of partnership provided that the death of any of

the parties shall not dissolve the partnership and that the heir or the nominee of the deceased partner should take his place. One of the two partners

died leaving behind him three widows and two minor sons. The other partner continued the business in the firm name and the firm applied for

registration on the basis of the partnership agreement of 1943. All the authorities declined registration in the view they took that after the death of

one of the partners, there was no partnership between the members of the two families, but the High Court was of the opinion that the Tribunal and

the other authorities had misdirected themselves in reaching the conclusion that the parties could not be regarded as partners and that the status of

the assessee for assessment year 1949-50 was that of a firm within the meaning of section 16(1)(b) of the Indian Income Tax Act, 1922. It was

contended before the Supreme Court that on the death of one of the two partners, the firm of Seth Govindram Sugar Mills was dissolved and,

therefore, the income of the said business could be assessed only as that of an association of persons. Dealing with this question, after referring to

the specific provisions in the deed of partnership, to the effect that the death of any of the parties shall not dissolve the partnership and that the heir

or nominee of the deceased partner shall take the place of a deceased partner in the partnership, the Supreme Court referred to the views

expressed by the Allahabad High Court in Mt. Sughra and Others Vs. Babu, and in M.S.V. Narayanan Chettiar Vs. M.S.M. Umayal Achi, and

also the view expressed by the Calcutta High Court in Hansraj Monant v. Gorak Nath Pandey [1962] 66 CWN 262 and repelled the argument

that the contract was an overriding one and would be binding on the surviving member, so that on the death of one of the partners, his heir would

be automatically inducted into the partnership. In doing so, after referring to section 31 and section 42(c) of the Partnership Act, the Supreme

Court observed as follows (at p. 515) :

The fundamental principle of partnership, therefore, is that the relation of partnership arises out of contract and not out of status. To accept the

argument of the learned counsel is to negative the basic principle of the law of partnership. Section 42 can be interpreted without doing violence

either to the language used or to the said basic principle. Section 42(c) of the Partnership Act can appropriately be applied to a partnership where

there are more than two partners. If one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partners will

continue the firm. On the other hand, if one of the two partners of the firm dies, the firm automatically comes to an end and, thereafter, there is no

partnership for a third party to be introduced therein and, therefore, there is no scope for applying clause (c) of section 42 to such a situation. It

may be that pursuant to the wishes of the directions of the deceased partner, the surviving partner may enter into a new partnership with the heirs

of the deceased partner, but that would constitute a new partnership. In this light, section 31 of the partnership Act falls in line with section 42

thereof. That section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing

partners : it presupposes the subsistence of a partnership; it does not apply to a partnership of two partners which is dissolved by the death of one

of them, for, in that event, there is no partnership at all for any new partner to be inducted into it without the consent of others.

Ultimately, the Supreme Court came to the conclusion approving the view taken by the Allahabad and Madras High Courts and rejecting the view

expressed by the Madhya Pradesh, Nagpur and Calcutta High Courts that the partnership. in that case, came to an end on the death of one of the

two partners. It is thus seen that even in a case where there was a provision in the partnership deed that the business of the partnership shall

continue despite the death of one of the two partners of the partnership, the Supreme Court held that the partnership will not survive on the death

of one of them. The position would be a fortiori in this case, where there is no provision to the effect that the partnership would continue despite

the death of one of the partners. Therefore, on the death of Subramania Pillai on February 19, 1972, the partnership business which was carried

on by Ramalingam Pillai and Subramania Pillai under the terms of the deed of partnership dated July 22, 1945, stood dissolved. Thereafter, the

assessee was taken in as a partner pursuant to the deed of partnership entered into between the surviving partner, Ramalingam Pillai and the

assessee. Indeed, clause (4) of the deed of partnership dated February 23, 1972, proceeded on the basis that the earlier partnership constituted

under the deed dated July 22, 1945, had been dissolved on the death of Subramania Pillai. Viewed in the light of the terms of the deeds of

partnership, the provisions of the Indian Partnership Act, 1932, and the decisions referred to earlier, the conclusion is inescapable that on the death

of Subramania Pillai, the husband of the assessee, on February 19, 1972, the partnership business carried on pursuant to the deed of partnership

dated July 22, 1945, stood dissolved and by yet another deed dated February 23, 1972, the assessee was taken in as a partner, after referring to

and accepting the dissolution of the earlier partnership between Ramalingam Pillai and Subramania Pillai. We are, therefore, of the view that on the

facts and in the circumstances of this case, there had been a succession to the partnership business which was carried on under the terms of the

deed of partnership dated July 22, 1945, between Ramalingam Pillai and Subramania Pillai by another partnership consisting of Ramalingam Pillai

and the assessee under the terms of yet another deed of partnership dated February 23, 1972. There is thus no question of the assessee having

succeeded to the interest of her husband by inheritance so as to claim the benefits of section 78(2) of the Act.

We may now refer to Commissioner of Income Tax, Gujarat Vs. Madhukant M. Mehta, relied on by the learned counsel for the assessee. That

decision really does not assist the assessee, for, in that case, there was a succession by three heirs to the speculation business carried on by a

proprietor and all the three heirs carried on the same speculation business as before and, thereafter, entered into a deed of partnership. It was

under those circumstances that the link or nexus between the business carried on by the deceased and after his death, by his heirs, earlier as a

body of heirs and subsequently, as partners, was held not to be lost, either in substance or in form and the business carried on by the firm was

considered to have remained the same, which was succeeded to by inheritance by all the heirs, who were also partners and, therefore, the firm was

entitled to carry forward and set off the speculation losses of the proprietor against the income from the speculation business earned in the relevant

assessment years. In this case, the husband of the assessee, Subramania Pillai, had left behind him, besides the assessee, a son and a daughter and

they had not joined the assessee or had otherwise carried on the business jointly with the assessee. Besides, in so far as the assessee is concerned,

it had been found already that there had been no succession to the business by inheritance, but that the assessee had been taken in as a partner in a

new business under the terms of a deed of partnership dated February 23, 1972. In other words, there is no nexus between the partnership

business earlier carried on and the business carried on by the assessee in partnership with Ramalingam Pillai. These distinguishing features would

exclude the applicability of the ratio of the decision in Commissioner of Income Tax, Gujarat Vs. Madhukant M. Mehta, . Equally, the decisions in

Commissioner of Income Tax, Bombay City Vs. Baimaniben, and Commissioner of Income Tax, Bombay City-I Vs. Shamsunder Juthalal

(Deceased), do not advance the case of the assessee. In CIT v. Bai Maniben [1980] 38 ITR 80, the effect of the death of one of two partners in a

partnership consisting of only two partners had not at all been adverted to or considered. This aspect has also been referred to in Commissioner of

Income Tax Vs. Smt. Saroj Agarwal, thus :

It may be noticed that in this case the question whether on the death of a partner the firm stands dissolved and the right of the representative to

business that was being carried on by the deceased partner was not considered.

Commissioner of Income Tax, Bombay City-I Vs. Shamsunder Juthalal (Deceased), was a case where the partnership consisted of three partners

and a provision was also made that the death of any partner shall not dissolve the partnership and that unless the surviving partners otherwise

decide, the share of the deceased partner shall be continued till the end of the accounting year in which he died, after which it shall cease and

determine. On the death of one of the partners, the heirs were taken in and one of the heirs who was a minor was also admitted to the benefits of

the partnership and the share of the deceased partner was apportioned equally among the heirs. The new partnership agreement stated that the

parties to the new agreement agreed to continue the partnership with effect from the date of the death of one of the partners in partnership. On the

question whether the sons of the deceased partner could carry forward and set off the share of loss, it was held that on the death of a partner, the

partner would not be dissolved and the surviving partners had exercised their option to continue the partnership by taking the heirs of the deceased

partner and, therefore, section 24(2)(iii)(c) of the Indian Income Tax Act, 1922, applied and the heirs of the deceased partner could set off the

losses suffered by their father. It is thus seen that there was no dissolution of the partnership in law as we have in this case and despite the death of

one of the three partners, the partnership and its business had continued and in the new partnership, all the heirs of the deceased partner had been

taken in as partners including a minor who was admitted to the benefits of the partnership. In other words, the business was not dissolved and the

nexus was there and with reference to the share of the deceased partner, all his heirs succeeded and were also made partners or were admitted to

the benefits of the partnership, so that the heirs could claim that they had succeeded to the interest of their deceased father by inheritance and the

business was also thereafter carried on with the result that they could claim that the benefits of section 24(2)(iii)(c) of the Indian Income Tax Act,

1922. That decision is, therefore, clearly distinguishable and cannot apply to this case. We are unable to agree that the mere fact that the business

had been actually carried on by one of the heirs in partnership with another, after the dissolution of the prior partnership, in accordance with

another deed of partnership, with a liability to be taxed on its business profits, would suffice to attract the application of section 78(2) of the Act

without reference to the other requirements thereof. We are unable to read either section 78(2) of the Act or the observations of the Supreme

Court in Executors of the Estate of J. K. Dubash v. CIT [1951] 19 ITR 182 in the manner suggested by the learned counsel for the assessee.

Having regard to these considerations, we hold that the Tribunal was right in concluding that the assessee was not entitled to claim set off of

business loss. We, therefore, answer the question in the affirmative and against the assessee. There will, however, be no order as to costs.