A firm in it's simplest term is where people come together as partners and work. However, at times things do not go as planned, and the partnership comes to an end along with the firm. Hence dissolution of a partnership firm basically mean breaking up or extinction of the relationship subsisted between all partners of the firm, and that the firm no longer stands. This dissolution of a firm can be through a multiple ways, this papers mainly deals with the dissolution and it’s judicial background, to determine the practicability of such dissolution.

The paper will further deal with what are the ways by which the dissolution occurs and liabilities of a partner for acts after dissolution, rights of partner after dissolution, suit for account, concept of receivers and few other related subjects. Although the rules for the dissolution of partnership firms is widely applied in India, problem arises in when they have to be applied, where complexities are present, especially when the obligation of a partner are co joined with fiduciary duties of other kinds, as often happens many a times.

Further the paper would also go on to explain the concept of dissolution and reconstitution and continuation of partnership. In addition to this the author would further proceed to discuss a firm's liability in income tax laws. Therefore, the present article will cover almost all the aspects related to the dissolution of partnership firm, and will provide judicial background for each.

Dissolution of A Partnership Firm

Dissolution of a partnership firm is not said to be dissolved by the fact of one or more partner ceasing to be a partner. But in cases where there are only 2 partner, and one partner decides to cease his right to be a partner, the firm dissolves.

In the CWT West Bengal v. M/S A.W Figgis &Co.[1] the supreme court held that  The law with respect to retiring partners are enacted in the partnership act is to a certain extent a compromise between doctrine of English law and mercantile usage which recognizes the firm as a distinct person or quasi corporation.

The process of dissolution culminates winding up , account settlement, taking over goodwill and assets and imposing restrictions on outgoing partners. In the winding up, process firm does not dissolve even though it has no legal entity. The provisions of section 39,42 and 46 deal with the concept and consequences of dissolution of the firm and do not abrogate the terms of contract between parties.

Modes of Dissolution

A partnership firm may be dissolved by various modes:

1. By consent
2. By agreement
3. Compulsory dissolution or dissolution by operation of law
4. Contingent Dissolution or automatic dissolution.
5. Dissolution by notice or optional Dissolution.
6. Dissolution by court or Judicial Dissolution.

By Consent
The question whether the firm has been dissolved by the partners or is being succeeded by another partnership, depends on the contention of the partners. Section 40 of the The Partnership Act gives right to partners to dissolve the partnership by agreement with the consent of all the partners or in accordance with the contract between the partners[2].

This also provides the right to a partner to not dissolve the partnership when it is voted in majority, and hence no partnership can be dissolved if even one of the partner do not agree or dissent from such opinion. And hence repudiation of the partnership by one or more partners which is accepted by all partners would indicate an implied agreement to dissolve as was held in the case of Hitchman v. Crouch Butler Savage Association.[3]

Dissolution may also be held where the services by a partner or his partners of an invalid notice to determine the partnership is accepted by the co-partners as a valid notice or where the conduct of the partner is inconsistent with the continuance of partnership as was held in the case of Both v. Amos [4].

In the case of Kali Ram v. Ram Rattan[5] where in a partnership at will, notice of dissolution was given or partnership business for about 3 years after the notice, it was held that failure to do anything amounted to consent for dissolution.

In fact mere assignment of a party to an interest in the partnership to a stranger does not and cannot lead to disruption of partnership business as was held in the case of Mangilal v. Bharwarlal[6]. In the law of partnership stoppage of the partnership business is different from dissolution of partnership.

Carrying on a business is the purpose of the a partnership and mere stoppage , ordinarily puts it on discontinuous. The same has been supported in the case of V.V.P Thangaraju v. K.B. Perumal [7].

When there is an arbitration clause in a partnership deed on the death of a partner under section 85 of the Arbrtration and conciliation act 1996 are maintainable, same has been held in the case of Sunderlal v. Bhagwati Devi [8].In absence of any statutory provisions permitting assessment of dissolved firm, assessment proceedings cannot be maintained against a dissolved firm same was held in the case of Chief Commr., S.T V. R.K. Goyal[9].

The question when a firm was dissolved is a mixed question of law and fact. The question as to when the firm was dissolved depends on the contentions of the parties which is necessarily a question of fact. But the conclusion drawn on such facts is always question of law as in the case of L Shyamlal v. Shyamlal [10]. The question whether there was reconstitution on dissolution of the firm and whether there was settlement of account of the firm at any times are the questions of facts and as such findings on such questions are not impeachable in the second appeal , this was later held in the case of M. Vallimmal v. Ramanathan [11].

In addition to a dissolution in partnership deed, there is a reference to the application of the partnership act in other cases, it cannot be said that a partner is not entitled to ask for a dissolution of firm under the provision of the act as was declared in the case of Sheonarain v. Shree Kripa Shankar[12] where there is a clause in partnership agreement to refer to arbitration all disputes relating to the dissolution to the arbitration.

An agreement for dissolution of partnership most of necessity cover not only the mere fact of dissolution and fixing the date of dissolution, but also matter, which arise directly out of the fact of dissolution, such as settlement of amounts found due on such settlement closing downer continuation of business, collection of outstanding and payment of liabilities.

For this purpose, a power of attorney and indemnity clause would also ordinarily be necessary. Each clause of the agreement of dissolution cannot be read separately so far as to find out what it attracts under the relevant same act. It would act as a great hardship and violate the principles that a fiscal statute must be interpreted in a manner which is beneficial to the subjects.

Dissolution By Agreement

A firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners, this is what has been stated under section 40 of partnership act. The first clause of section 40 provides for dissolution of firm by consent of all partners. This is consensual dissolution of partnership. It applies to specific partnership and partnership at will both.

In Harish Kumar v. Bachan Lal Punjab and Haryana High court held that  A dissolution was held to have taken place in the case of the firm from agreed date. The period of limitation for filing a case for renditions of account commenced from that date and was not permitted to be prolonged by a partner subsequently giving a notice of dissolutions. In a firm of qualified solicitors incurred disqualification and resultantly the firm was dissolved with the consent of all the partners.

A suit for the dissolution of firm cannot be filed in absence of cause of action. Partners may create partnership via agreement and by same agreement it can also be dissolved. The contract providing for dissolution maybe contained in the partnership deed itself or in a separate agreement.

Dissolution by agreement is different from dissolution by consent in former partners have to adhere the existing articles of firm while in later case irrespective of the articles the firm may be dissolved by consent of all partners.

In Carmichael v. Evans[13], the court observed that Any circumstances such as unsoundness of mind, physical incapacity, incompatibility of temperament or dishonesty even outside business maybe by an express clause in the article be a ground for dissolution of firm.

Compulsory Dissolution

Section 41 of the partnership act talks about compulsory dissolution of firm , it states that it can be dissolved by adjudication of all the parties but one as insolvent, or by happening of any event , which makes its unlawful for the business of the firm to be carried on or of the partners to carry it forward. A firm can do only legal business only which is clear by sector 23 and 24 of Indian contract act 1872, as an agreement for unlawful objects and consideration is void. Section 41 envisages illegality of business subsequently which may be a case of subsequent impossibility under section 56 of Indian contract act 1872.

The provision of section 41(b) states that id firm has more than one undertaking doing diversified business then if one business is declared unlawful, it does not affect the operation and legality of other business and those would not be dissolved. In the case of event of war, the ancient notion is that an alien enemy cannot sue in queen’s court, but now the alien company is also governed under the same terms and conditioning and hence simplifying the rules.

Contingent Dissolution Or Automatic Dissolution

A firm may be dissolved upon certain contingencies , automatic in the sense, whenever it happens, it must dissolve itself. Section 42 of the partnership act provides for certain contingencies, it states various contingencies , which could result in dissolution of a firm:

1. If constituted for a fixed term, b expiry of that term, y the expiry of that term;
2. If constituted to carry out one or more adventure or undertaking , the completion thereof;
3. By death of partner and;
4. By the adjudication of a partner as an insolvent.

Fixed Term

Partnership may be for fixed terms as we know them as particular partnership wherein the lifespan of firm as it gauged by the partners in limine and partner fix out a time period for the firm and then on expiry the firm will dissolve.

In the case of Saligram Rupal Khanna v. Kanwar Rajnath[14] it was held by the supreme court observed the proposition in our opinion cannot be disputed that after dissolution the partnership subsist merely for the purpose of completing pending transactions, winding up of business and adjusting the rights of partners ., that a firm constituted for a fixed term shall stand dissolved in the absence of contract to the contrary on the expiry of that term, similarly in the case of Kuriachan Chacko v. Registrar of firm[15].

Completion of Business

The firm automatically stand dissolved if the business of firm , for which it was constitutes , is completed as was held in Ramnarayan v. Kashinath[16] the court observed that there was no evidence on record to show that the partnership continued even partnership does not appear to have subsisted thereafter. Obviously enough, the partnership was formed only for a single venture.

If in a fixed term , a partner dies early it would dissolve the firm early than its term. This is a mode of dissolution of partnership firm too. This is provided for in section 33 of the partnership act, and in section 253 of the Indian contract act. Even where there is a term the death of one partner dissolves the partnership. Section33 overrides section 32 and if the death is earlier, the partnership is dissolved.

Death

Death of a partner may also terminate the existence of a firm. However contrary to the effect can be made by providing in the deed that partnership will continue so long there are two partners then in such cases of death of partner will not cause dissolution of partnership. This gain has been strengthened by the case of Kesrimal v. Dalichand[17].

Insolvency

A firm may be dissolved in case of insolvency of a partner, however, it is subject to contract contrary to this effect. Moreover, such an agreement shall be subject to provisions of compulsory dissolution contained in section 41.

Dissolution By Notice

Section 43 says that in the case of partnership at will, the firm may be dissolved by any partner giving a notice in writing to all the partners of his intention to dissolve the firm. The date of dissolution may be given in the notice itself and if no date is given then date of communication of notice shall be date of dissolution.

In case of Dhukia Amlaner MT v. Raychand[18], it was held that a notice that accounts be rendered and that ascertain work must not be proceeded , is not a notice of dissolution.

In A Gopal Reddy v. E. Jaya Rami Reddi[19], a fixed period of firm was attempted to dissolve by notice which was rejected by the court that any of the ground enshrined in section 44 as ‘ just and equitable’ has to be proved for dissolution of such firms.

Dissolution By The Court

Section 44 empowers the court , at a suit of a partner, to dissolve the firm on the happening of any one of the grounds enumerated in clauses(a) to (g). This declaration of the ground for judicial dissolution corresponds , with verbal variation and additional provisions adapted to Indian procedure.

In the case of Gur Dayak Prsad v. L Rahunath Prasad and others [20] it was held that where partners offered their own shares to the firm under the stipulation contained in the partnership deed, but no resolution was passed on the notice though included in the agenda , it was held that the dissolution could not be enforced under section 44 as under the deed of the partnership it was open to the plaintiffs to have sold their shares privately if the firm did not purchase them.

Further in the case of Daggumati v.Yedalapalli Govindu [21]. Moreover there are further grounds through which dissolution of partnership firm can be guaranteed.

Insanity

Insanity can be a ground for dissolution of firm. The dissolution on the grounds of insanity is useful for both the insane and other partners, in the case of Willam v. Rowland [22], it was observed that one of the partners of the firm had gone insane, the court therefore rejected the appeal to appoint a receiver, and ordered for dissolution of the firm.

Misconduct

In the case of Show v. Milford[23], a partner of the firm committed adultery and his wife left him and other partners applied for dissolution on this ground , the court held that there us no doubt of misconduct, but in the case of bankers how can the court say that a man’s money is less safe because one of the partners committed adultery and hence rejected the plea. Hence, only in cases where the misconduct of the concerned individual affects his professional life, only in those cases shall the firm be dissolved.

Persistent Breach of Agreement

If a partner willfully commits breach of agreement relation to the management of the affair of the firm, that is not right, then the other partners may apply for the dissolution of the firm before the court. In the case of V.H Patel and company v. Hirubha Himabhai Patel[24] , any conduct which breaches mutual trust and confidence between the partners is sufficient to invoke this clause for dissolution of firm.

Transfer of Interest

A firm may be dissolved on the application of a partner by the court, if the partners other than the one suing has transferred the whole interest in the firm to a third party.

Perpetual Losses

If a business of the firm cannot be carried on save at a loss only then the firm may be dissolved by the court at the application of partners. In the case of Chandrika Parsad v. Vishnu Chandra[25]it was held that what is required to be proved under this clause is that the business of the firm cannot be carried on save at a loss. It is not unusual to find a manufacturing business suffering loss in the initial years, but in cases , as the mentioned one, where losses are being regular , and there is no scope of profit, in such cases the firm can be dissolved on an application by the partners.

Dissolution And Settlement of Accounts

In the case of K. Gopal Chetty v. Vijayaraghavachariar[26], a question arose as to the settlement of account after dissolution, it was held that where a partner files a suit for recovery of sum against the fellow partner and relief is capable of being granted without taking account the general account of the firm then account may be settled without dissolving the firm, however n recent case it was held that in he present cases too, the accounts can be settled by assuming the continuance of the partnership. In cases where there is a property, the property should be partitioned and granted.

Arbitration

]In the case of Jagdish Chandra v. Hari Narain[27], the main question raised was whether am arbitrator can decide dissolution of the firm. The court said that where a clause in articles of partnership per the agreement provides that all the differences between the partners will be referred t the arbitrator, the arbitrator will have power to decide in such cases whether or not such partnership shall be dissolved.

The Court, however, did not decide as to whether an arbitrator will be bound by the grounds mentioned in section 44 or go beyond these ground and award dissolution of the firms. Further shall the liability of the firm and individual after the dissolution of the firm be stated in the next chapter.

Chapter 3

After Dissolution of The Partnership Firm

Dissolution is the termination of the firm .It includes a variety of activity like winding up, settlement of account, management of goodwill, disbursement of assets, ranking and satisfaction of claims of creditors and other. Section 45 to 55 deal with what happens after a partnership firm.

Section 45 declares the continuing liabilities of the partner to third parties until public notice is given of the dissolution. The object is to enable the third party to know of the retirement. This provision also provides security to any party contracting with the firm , and also defines liability and rights of the partner after the dissolution. In the absence of notice, the result would be the same.

Section 46, states that on dissolution of a firm every partner or his representative is entitled, as against all the other partners or representative ,to have the property of the firm applied in payment of the debts and liabilities of the firm, and have the surplus distributed among thr partners or their representatives according to their rights.

This was also held in the case of CIT , Madhya Pradesh v Dewas Cine Corpn[28], and in the case of Ravi Prakash Goel,v. Chandra Prakash Goel[29], where it was held that the representative of a deceased partner are equally entitled to file of a suit for distribution of assets.

Section 47 states that even after the dissolution of the firm the authority of each partner to bind the firm and the mutual rights and obligation will continue notwithstanding the dissolution , as it may be necessary to wind up the business. This clause can further be related, when the assessing officer, assess the firm for their tax liability.

Including the fact that the firm shall not be liable for acts of a partner who has been declared insolvent., and also not to persons who after such adjudication represented themselves as the partners of the firm. Further in cases such as Ramrichapal v The Bikaner Stores[30], it was explained the need for continuing the partnership for the purpose of winding up.

Chapter 4

Partnership: Income Tax Liability

Under the income tax law, the total income of the firm will be determined as a separate entity and it will be computed under various heads of income. However while computing taxable profits under head profits and gains of business or profession a deduction is allowable to the firm on account of interest and remuneration payable to the partners. The Income tax Act, 1961, does not define the term firm but Section 2(23) of the Act which deals with definition simply states as under;

1. Firm shall have the meaning assigned to it in the Indian Partnership Act, 1932.
2. Partner shall have the meaning assigned to it in the Indian partnership Act, 1932 and shall include
   i. Any person who, being a minor, has been admitted to the benefits of partnership ; and
   ii. A partner of a limited liability partnership as defined in the Limited Liability Partnership Act, 2008;
3. partnership shall have the meaning assigned to it in the Indian Partnership Act, 1932, and shall include a limited liability partnership as defined in the Limited liability Act, 2008.

If the firm satisfies the conditions laid down u/s 184, the firm shall be eligible for deduction on account of interest, salary, etc. while computing its income under the head business and profession.

However, it will be subject to the maximum of the limit specified under Sec.40(b). On the other hand, if such conditions are not satisfied, no deduction shall be allowed to the firm on account of such interest, salary, bonus, etc.

Conditions to be satisfied to be eligible for deduction of interest, Salary, etc. and to be assessee as Partnership firm:
In the First Assessment year: Partnership is evidenced by an instrument i.e. there is a written document giving the terms of partnership.

1. The individual share of the partners are specified in that instrument.
2. A certified copy of the said instrument of partnership shall accompany the return of income in respect of the assessment year.

The firm shall be assessed in the same capacity for every subsequent year if there is no change in the constitution of the firm or the share of the partners. In case any change had taken place in the previous year, the firm shall furnish a certified copy of the revised instrument of partnership along with the return of income. In failure to do so, the firm shall not be eligible for deduction on account of salary, interest, bonus, etc.

Nevertheless, such amount of interest, salary, bonus etc. shall not be charged to tax in the hands of the partner. Certified copy of the partnership deed can be submitted along with the revised return provided the asst. has not been completed based on the original return filed by the firm.

The section speaks of the filing of the certified copy of the partnership deed along with the return.

Therefore, return includes the original return as well as the return submitted under section 139(5).

• Kullu velly[31],
• Balish Singh & Co. vs. CIT[32],
• CIT vs. Shrivastava[33]

It must however be borne in mind that revised return has to be a valid return in terms of the conditions specified in Sec.139(5). Further according to the decision of the Apex Court in Kumar Jagdishchandra Sinha vs. CIT[34], Sec.139(5) can be invoked only if the original return is filed within the time specified u/s 139(1).

Also filing of certified copy of the partnership deed is procedural / technical requirement and as such the deed can be submitted after the filing of the original return. This view is supported by the Hon‟ble Supreme Court in the case of Manglore Chemicals and Fertilizers Ltd. vs. Dy. Commissioner & Ors. [35]

Wherein it is held that the stringency and the mandatory nature of a provision for exemption must be justified by the purpose intended to be served. The mere fact that it is a statutory condition does not matter one way or the other.

The conditions which belong to the area of procedure have got to be constructed liberally. The Delhi Tribunal has considered the issue after the commencement of the new scheme and held that filing the certified copy of the partnership deed before completion of the asst. is sufficient compliance with the provision of Sec.184 [ITO vs. D. M. Enterprise (67 ITD 123) and Ishardas Sahani[36]].

Interest to partner: Not exceeding 12 percent per annum from 1-06-2002.

Remuneration to Partner:

1. Payment to a non-working partner will not be allowed as a deduction Partners.
2. A working partner is an individual who is actively engaged in conducting the affairs of the business or profession of the firm.
3. Quantum of allowance is to be determined with reference to „book profit‟ which is defined to mean an amount computed in accordance with the provisions of sections 28 to 44D of the Income-tax Act, as increased by the amount of remuneration to partners if deducted in determining book profit.
4. Maximum permissible deduction for payment of remuneration to working partners

Rate of tax: Flat rate of 30% on the total income after deduction of interest and remuneration to partners at the specified rates. (No surcharge for Assessment Year 2010-11) to be increased by education cess secondary and higher education cess @ 3% on Income-tax.

Losses: Unabsorbed loss including depreciation in respect of A.Y. 1993-94 onwards of the firm will not be apportioned amongst the partners and will be carried forward by the firm only. In case of change in constitution of firm, following treatment will be given:

1. Calculate the share of profit of the retiring/ deceased partner in the year in which there is a change in the constitution due to such retirement / death.
2. Compute the share of loss of the retiring/ deceased partner in the brought forward loss of the firm.
3. Set off the share in the brought forward losses of the retiring/ deceased partner from his share of the profit of the current year.

This set off of share of brought forward loss will be allowed to the extent of share of profit of such partner. The balance loss, if any, will not be allowed to be carried forward either to such partner or to the firm. On the other hand, if in the current year also the share of the partner is a loss, then share of the brought forward loss along with the share of loss of current year will not be allowed to be set off and carried forward. Nevertheless, unabsorbed deprecation of the firm is not covered u/s 78 and therefore, the entire unabsorbed depreciation will be allowed to be carried forward in the hands of the firm, even if there is a change in the constitution of the firm.

Change in constitution:

Where at the time of making assessment u/s 143 or Sec.144, it is found that a change has occurred in the constitution of a firm, the assessment shall be made on the firm as constituted at the time of making the assessment. In other words, there will not be a separate assessment of firm even when there is a change in the constitution of the firm. There is a change in the constitution when:

1. if one or more of the partner ceases to be partners.
2. one or more new partners are admitted.
3. when there is change in their shares.

Dissolution of a firm due to death of any partner will not be considered as change in the constitution of the firm (proviso to Sec. 187)

Succession by other firm:

Where a firm carrying on a business or profession is successes by another firm, and the case is not one covered by Sec.187, separate assessments shall be made on the predecessor firm and the successor firm in accordance with the provisions of Sec.170.

Dissolution or discontinuance:

Where any business or profession carried on by a firm has been discontinued or where a firm is dissolved, the assessing officer shall make an assessment of the total income of the firm as if no such discontinuance or dissolution had taken place, and all the provisions of this Act, including the provisions relating to the levy of a penalty or any other sum chargeable under any provision of this Act, shall apply, so far as may be, to such assessment.

Every person who was at the time of such discontinuance or dissolution a partner of the firm, and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum.

Partner’s assessment:

1. Once tax is paid by firm, no tax will be payable by the partners on share of income from the firm.
2. Amount of Interest and/or remuneration etc. received by a partner will be taxed in his hands as Business or Professional Income, excluding the amount disallowed in the hands of the firm being in excess of limits laid down in S. 40(b) and from A.Y. 2004-05 amount disallowed in the event of any failure as mentioned in S. 144 or non compliance of S. 184.

Conclusion
Dissolution of partnership, this is a vast topic, to be researched upon, it is one of the prospective chapters in law, the topic is dynamic in nature and thus, it does not have a fixed set of rules, the judiciary helps evolve the dynamics of this subject. The present paper has discussed the dissolution of partnership firms, its modes, and in brief, what happens after a firm has been dissolved. With courts being aware of this subject, the paper has evidenced number of cases that have been cited, to support it's argument. The topic has a dynamic nature and thus, shall never be limited to the acts itself. Also, it’s scope has been widened by its legal recognition under the income tax laws, which has also been incorporated above.


End-Notes:

1. AIR 1953 SC 455.
2. MOH Uduman v. MOH Aslam (1991), 1 SCC ,412 para 13.
3. (1983) 80 LS Gaz 550.
4. (1946) Fam 46(Partnership between husband and wife).
5. AIR 1977 NOC 31(Del)
6. AIR 1963 Raj 153.
7. AIR 1980 Mad 7.
8. AIR 1967 All 400.
9. AIR 1982 NOC 11(del )(FB).
10. AIR 1935 All 1008.
11. AIR 1969 Mad 257
12. AIR 1972 Pat 75
13. (1904) 1 Ch.D 486.
14. Air 1974 SC1094.
15. AIR 2014 Ker 109.
16. Air 1954 Pat 53.
17. AIR 1959 Raj 140.
18. AIR 1952 Bom 337.
19. (2003) 2 ALD 112 (AP).
20. AIR All 141,p 150.
21. AIR 1966 AP 192.
22. (1861) 31 LJ Ch 265.
23. (1869) 18 LT 142.
24. (2000)4 SCC 368.
25. 1981 All LJ 967.
26. AIR 1922 PC 115:ILR 45 Mad 378.
27. AIR 2010(NOC) 1005( Raj).
28. AIR 1968 SC 676.
29. 2008, 13 SCC 667.
30. AIR 1966 Raj 187.
31. 77 ITR 124.
32. 165 ITR 575 Cal
33. 170 ITR 556 M.P.
34. 220 ITR 67.
35. 21 Tax Gazette 193.
36. 77 ITD 256.