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5-07-2017 S.D. W.P. 7908 (W) of 2016 Madhu Ghosh Versus Commissioner of Income Tax (Admn) & Ors.
Mr. Mainak Bose Mr. Kajal Ray ….For the Petitioner. Mr. Udayan Chakraborty Mr. Aniket Mitra …For the Respondents. The petitioner as a sole proprietor claims refund of an amount due pursuant to an order of refund in respect of an assessment of a partnership firm. Learned Advocate appearing on behalf of the petitioner submits that, the partnership firm was an assessee under the Income Tax Act, 1961. The petitioner was one of the partners of the partnership firm.
In such assessment proceedings, the
partnership firm had received an order of the refund. However, the amount of refund has not been paid by the Income Tax Authorities on the plea that, the partnership stands dissolved and
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that, the petitioner cannot receive the entirety of the amount directed to be refunded. He submits that, the partnership has since been dissolved and the petitioner is the sole proprietor of the firm after its dissolution. The petitioner has, therefore, taken over the entire assets and liabilities of the erstwhile partnership firm. The outgoing partner of the partnership firm is a party respondent in the writ petition. He has given in writing that, he has no objection to the Income Tax Authorities paying the amount of refund to the petitioner. In addition thereto, the petitioner has served a copy of the writ petition and has affirmed an affidavit of service to such effect which he seeks leave to file. He submits that, the private respondent has been informed that he should raise his objection, if he has any, in the pending writ petition with regard to the claim for refund made by the petitioner. He further submits that, since none appears on behalf of such respondent, the Court should be pleased to direct the Income Tax Authority to refund the amount found receivable by the partnership firm. Learned Advocate for the Income Tax department submits that, the petitioner being one of the partners of the partnership firm is not entitled to the entirety of the amount directed to be
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refunded.
Moreover, the erstwhile partnership firm was
subsequently reconstituted. Therefore, the entirety of the amount cannot be directed to be refunded. I have considered the rival contentions of the parties and the materials made available on record. Affidavit of service filed in Court be kept with the record. None appears for the private respondent despite service. A partnership was an assessee under the Income Tax Act, 1961. It became entitled to receive refund pursuant to an order passed by the Income Tax authorities. Such order has not been implemented
till
date.
The
partnership
underwent
a
reconstitution, in the sense, that it stood dissolve with the petitioner taking over the entire assets and liabilities of such partnership. Therefore, the petitioner becomes entitled to receive the entirety of the refund in terms of the order passed by the authorities in respect of the partnership firm as an assessee. It appears from the records made available to Court that, the erstwhile partner of the partnership firm has shown no interest in the litigation in spite of notice to him.
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In such circumstances, it would be appropriate to direct the Income Tax Authorities to implement the order of refund passed in respect of the partnership firm by payment to the petitioner the entire amount of refund. In the event of such payment, the Income Tax Authorities will stand discharged of its liabilities in its entirety. So far as the refund is concerned, let such exercise be completed within a period of four weeks from date of communication of this order to the authorities. W.P. 7908 (W) of 2016 is disposed of accordingly. No order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)
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