S.P. Gramophone Company Vs. C.I.T.,
Patiala [1986] INSC 10 (29 January 1986)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
MUKHARJI, SABYASACHI (J)
CITATION: 1986 AIR 1152 1986 SCR (1) 164 1986
SCC (2) 1 1986 SCALE (1)137
ACT:
Indian Income Tax Act 1922 & Income Tax
Act 1961:
Section 26A/Sections 184 & 185 - Firm -
Registration of - Refusal by Tax Authorities - When valid - Instrument of
partnership - Not militating against firm's validity in law But pointer against
factual genuineness.
HEADNOTE:
Prior to the Assessment Year 1961-62 the
appellant-f1rm was a partnership concern consisting of two partners, each
having 50% share in the profits and losses of the firm and it was granted
registration. Both the partners met with an accident on 19.10.1958 in which they
suffered serious injuries and became invalid. On 1.4.1960 a fresh Deed of
Partnership was executed by virtue of which the two original partners retained
25% share each while the four new incoming partners were given 12.1/2% share
each. Prior to April 1,1960 two of the new incoming partners were already
working as employees in the original firm. The fresh Partnership Deed, inter
alia, provided that the partnership was at will determinable by one month's
notice in writing.
For the Assessment Year 1961-62 an
application duly signed by all the partners seeking registration of the firm
under s. 26A of the Income Tax Act 1922 on the strength of the fresh
Partnership Deed was made on 15th September 1960 annexing therewith the
original Partnership Deed. The four new incoming partners were examined by the
Income Tax Officer and their statements were recorded, which, the ITO felt,
clearly suggested that they were not real partners but dummies brought in to
avoid the higher tax incidence. After considering the Partnership Deed, the
statement of the four new incoming partners and the fact that profits had not
been shown to have been distributed in the books and no entries made in the
year of account, the ITO rejected the application and refused registration.
The view taken by the Income Tax Officer was
confirmed by the Appellate Assistant Commissioner and by the Tribunal.
165 The Tribunal, however, was of the view
that four new incoming partners were benmidars of the two original partners.
On Reference made to the High Court, the High
Court felt that the first question referred to it did not bring into focus the
real issue and, therefore, recast the same.
The High Court upholding the refusal of
registration held:
(1) that no genuine partnership had come into
existence and that the finding of the lower authorities in that behalf was
based on ample material on record; (2) that the assessee is not entitled to the
registration under s.26A of the Income Tax Act, 1922 read with Rule 6 of the
Income Tax Rules, 1922; and (3) that the mere fact that the four new incoming
partners were found to be benamidars of the two original partners could not be
a proper ground for refusing registration.
In the appeal to this Court on behalf of the
appellant it was contended: (i) that refusal to grant registration to the
extent that it was based on the ground that no valid partnership in law had
come into existence was unsustainable; (ii) that there was no evidence to
justify the finding on the genuineness of the appellant firm, and (iii) that
the High Court having held that registration could not be refused merely on the
ground that some of the partners were benamidars, registration ought to have
been granted.
On behalf of the Revenue it was contended:
(1) that even if a valid partnership in law came into existence by executing
the Deed registration could be refused on the ground that factually no genuine
firm had come into existence; (2) that it is open to the High Court to reframe
or recast a question formulated by the Tribunal before answering it so as to
bring out a real issue between the parties; (3) that the High Court had rightly
affirmed the view of the Tribunal that the appellant-firm had not genuinely
come into existence; (4) that though under the 1922 Act no provision similar to
the Explanation to Sec.185 of 1961 Act obtained and the fact that some members
were benamidars of others in a firm could be no bar to the grant of
registration, if the taxing authorities were to record an adverse finding on
the factual genuineness of the firm registration could be refused; and (5) that
so far as the actual division or distribution of profits, the lower authorities
were justified in not relying on loose sheets indicating the working of the
firm and the assessee cannot be allowed to fill the lacuna by producing books
for the following year.
Dismissing the Appeal, 166 ^
HELD: 1.The concept of a firm being valid in
law is distinct from the factual genuineness and for the purpose of granting
registration both aspects are relevant and must be present and one without the
other will be insufficient.
[l73 G]
2. Even if a firm brought into existence by
executing an instrument of partnership deed is shown to possess all the legal
attributes it would be open to the taxing authority to refuse registration if
it were satisfied that no genuine firm has been constituted. Moreover, some of
the provisions contained in such instrument may not militate against the firm's
validity in law but these can be a pointer against its factual genuineness.
[173 G-H; 174 A]
3. Clause 5 of the Partnership Deed in the
instant case, vests the control and management of the partnership business in
the original two partners and denies to the four new incoming partners any
right in the management of the affairs or the accounts of the partnership
business, may not show lack of the element of mutual agency but has a vital
bearing on the factual genuineness of the firm and read along with Clauses
3,6,7 and 8 would go to show that the four new incoming partners were no real
partners but were dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new
incoming partners were very close relatives of the two original partners and
that two of them were working as employees in the erstwhile firm whose service
as such were continued in the relevant year on existing remuneration with such
increments as the two original partners may agree to give cannot be lost sight
of.
In addition, the statements of the four new
incoming partners that were recorded in November 1965 clearly show that they
had signed the instrument mechanically without knowing or reading, much less
after understanding the implications thereof. [174 A-D]
4. In the instant case, the profit and loss
account statement prepared on loose sheet did not contain any distribution of
profits and or allocation thereof to each one of the new partners. [175 E]
5. Production of account books in this Court
has deprived the taxing authorities an opportunity to make their comments
thereon. Apart from this aspect the question would be whether even such entries
were genuine entries intended to be acted upon or mere paper entries making a
show of allocation 167 of the share of profits due to each one of these four
new incoming partners and this would require further investigation into
relevant facts. This aspect throws considerable doubt on the point whether or
not entries were intended to be acted upon. [175 G-H; 176 B]
6. In the instant case, there was sufficient
material on record on the basis of which the taxing authorities as well as the
Tribunal could record an adverse finding on the genuineness of the firm against
the assessee and registration was rightly refused. [176 C]
CIVIL APPELLATE JURISDICTION: CIVIL Appeal
No. 850 of 1974.
From the Judgment and Order dated 24.9.1973
of the Punjab and Haryana High Court in Income Tax Reference No. 21 of 1972.
S.T. Desai, M/s. J.B. Dadachanji, Harish
Salve, P.K.
Ram and Mrs. A.K. Verma for the appellant.
V.S. Desai, Gauri Shankar and Miss A.
Subhashini for the respondent.
The Judgment of the Court was delivered by
TULZAPUKAR, J. This appeal raises the question of granting registration to the
appellant-firm (the assessee) under s. 26-A of the Income Tax Act, 1922 for the
Assessment Year 1961-62. The taxing authorities, the Tribunal and the High
Court have refused registration sought by the appellant-firm and hence this
appeal.
Prior to the Assessment Year 1961-62 the
appellant-firm was a partnership concern consisting of two partners, Shri Pal
Singh and Shri Sadhu Singh, each having 50% share in the profits and losses of
the firm and it was being granted registration. It appears that the two
partners met with an accident on 19.10.1958 in which Shri Pal Singh suffered a
serious head injury and lost his memory for quite some time while Shri Sadhu
Singh suffered an injury to the spinal cord which rendered him invalid for
quite a long time and the case put forward was that as the business was on
extensive scale and the two partners were physically handicapped (they recovered
during the meantime) they entered into a fresh Deed of Partnership on 1.4.1960
by virtue of which Pal Singh and Sadhu 168 Singh of the one part and Sarvashri
Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh of the second part
became partners with the following share ratio in the profits and losses,
namely, Pal Singh and Sadhu Singh the original two partners retained 25% share
each while Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh were given
12-1/2% share each. Admittedly two of the new incoming partners, namely Surjit
Singh and Gulzar Singh were relate to Pal Singh being his son and brother
respectively who were obviously accommodated within the 50% share originally
owned by Shri Pal Singh while the other two incoming partners Hari Singh and
Harbans Singh were related to Shri Sadhu Singh both being his brothers who were
accommodated within the 50% share originally owned by Sadhu Singh. Moreover,
prior to April 1, 1960 Hari Singh and Harbans Singh were already working as
employees in the original firm.
At this stage it will be convenient to
indicate some of the salient clauses of the Partnership Deed entered into
between the parties on 1.4.1960. Under cl. 1 the partnership was declared to be
one at will determinable by one month's notice in writing and under cl. 3 the
parties of the second part (i.e. the four new incoming partners) were not
required to contribute any capital but the original two partners were to do so
in equal shares. Clause 4 provided that Shri Hari Singh and Shri Harbans Singh
shall continue to draw their salaries or other remuneration from the firm as
was being drawn by them along with any increment as agreed to by the parties of
the first part (the original two partners) from time to time. Clause 5 was
significant as it provided that the four new incoming partners "shall not
interfere in the management or the affairs or the accounts of the partnership
business." Under clause 7 it was provided that none of the four new
incoming partners shall sell, mortgage, hypothecate, gift or will away or
alienate in any way whatsoever his share to any third person and that in case
of need they shall alienate their shares in favour of the parties of the first
part (the two original partners) only and not even to any one amongst them. It
was further provided that in case of a dispute among the partners regarding any
of the clauses of the deed the decision of the partners of the first part (two
original partners) shall be final and conclusive and binding and shall not be
called into question in any court of law.
169 For the Assessment Year 1961-62 (the
relevant accounting year in respect whereof ended on March 31, 1961) an
application duly signed by all the partners seeking registration of the firm
under sec. 26-A on the strength of the aforesaid Deed of Partnership was made
on 15th September, 1960 and the original Partnership Deed was annexed thereto.
The four new incoming partners were examined by the I.T.O. and their statements
were recorded which, the I.T.O. felt, clearly suggested that they were not real
partners but dummies brought in to avoid the higher tax incidence. After
considering the several clauses contained in the partnership deed, the
statement of the four new incoming partners and the surrounding circumstances
including the fact that profits had not been shown to have been distributed in
the books and no entries made in the year of account, the I.T.O. rejected the
application principally on two grounds: (a) that in law no valid partnership
had been created inasmuch as the element of mutual agency was lacking and (b)
factually no genuine firm has come into existence inasmuch as the four new
incoming partners were y dummies. Registration was also refused on two other
grounds, namely, there was a breach of the terms of the Partnership Deed in
that, even in the absence of a provision in that ; behalf, salary and
remuneration were credited in the personal r accounts of the two original
partners Pal Singh and Sadhu Singh and there was non- compliance of income tax
rules. In appeal preferred by the assessee the Appellate Assistant Commissioner
after discussing the several issues at great length confirmed the I.T.O.'s
order refusing registration. In the further appeal preferred by the assessee to
the Tribunal the view of the A.A.C. was confirmed by the Tribunal but in doing
so the Tribunal expressed the view that four new incoming partners were
benamidars of Shri Pal Singh and Shri Sadhu Singh. At the instance of the
assessee the following three questions were referred to the High Court for its
opinion.
(1) Whether on the facts and in the
circumstances of the case and on a true construction of the instrument of
partnership dated 1st April 1960 a valid partnership came into existance? (2)
Whether on the facts and in the circumstances of the case the assessee is
entitled to registration under section 26-A of the Income Tax Act, 1922 read
with Rule 6 of the Income Tax Rules, 1922? and 170 (3) Whether on the facts and
in the circumstances of the case and in view of the fact that the parties of
the second part have been found to be benamidars of the parties of the first
part the assessee firm is entitled to the grant of regis- tration? The High
Court felt that the first question referred to it by the Tribunal did not bring
into focus the real issue that arose between the parties and therefore the same
was required to be recast or reframed and it reframed the question thus:
Whether on the facts and in the circumstances
of the case, and on true construction of the instrument of partnership dated
1st April, 1960 there is a genuine partnership, and whether the finding that
there is no genuine partnership is based on evidence?" After considering
the entire material on the record as also the rival contentions urged before it
by counsel on the either side the High Court answered the first question in
favour of the department and against the assessee, that is to say, it held that
no genuine partnership had come into existence and that the finding of the
lower authorities in that behalf was based on ample material on record. The
second question was also answered in the negative in favour of the department
and against the assessee. As regards the third question it was answered in
favour of the assessee and it was held that the mere fact that the four new
incoming partners were found to be benamidars of the two original partners
could not be a proper ground for refusing registration. However, in view of its
answers to the first two questions particularly the first question as reframed
refusal of registration was upheld by the High Court.
This refusal to grant registration for the
assessment year 1961-62 has been challenged by the appellant-firm (assessee) in
this appeal and counsel for the assessee raised three or four contentions in
that behalf. On the aspect of the firm's validity in law counsel contended that
the view taken by the taxing authorities as well as the Tribunal that no valid
partnership in law had come into existence for lack of mutual agency has
proceeded on a misconstruction of s. 4 of the Partnership Act as also clause 5
of the Partnership Deed in question; according to him so far as the element of
mutual agency is concerned all that is required to constitute a valid firm
under s. 4 is that the business must be carried on by all 171 or any of them
acting for all and therefore, if the control and management of the business of
the firm was left by agreement between the parties in the hands of even one
partner to be exercised by him on behalf of the others the legal requirement
could be said to have been satisfied and clause 5 of the Partnership Deed in
question vests such control and management with two partners (the two original
partners) who would be acting on behalf of all and the mere exclusion of the
four new incoming partners from such control and management cannot affect the
validity of the- firm and in this behalf counsel relied on a decision of this
Court in K.D. Kamath and Co. v. C.I.T. Mysore, 82 I.T.R.
680. In other words counsel urged that if
clause 5 of the Deed is properly read it could not be said that there was any
lack of the element of mutual agency. On the aspect whether a genuine firm had
come into existence or not counsel urged that the Tribunal had not recorded any
clear finding but had merely proceeded on the basis that no valid firm in law
had come into existence but the High Court went out of its way to deal with the
question of genuineness of the appellant-firm by recasting or reframing the
first question referred to it, and recorded an adverse finding thereon which
should not have been done by the High Court.
Counsel further pointed out that the Tribunal
had erroneously taken the view that because four new incoming partners were
benamidars registration could not be granted and he urged that the High Court,
having reversed that view, ought to have held that the assessee was entitled to
registration under s. 26-A of the 1922 Act; and in this regard counsel pointed
out that the position under the 1961 Act is different in view of the
Explanation that has been inserted in s. 185 of that Act but in the absence of
any similar provision in the 1922 Act the position was well settled that a firm
could not be denied registration merely because some of its partners were
benamidars of others and in that behalf reliance was placed on a decision of
this Court in C.I.T. Gujarat v. A.Abdual Rahir and Co.. 55 I.T.R.
651. Counsel further urged that undue
emphasis was laid on the fact that profits of the previous year ending March
31, 1961 had not been divided or distributed among all the partners by making
requisite entries in the books in the year of account and registration was
wrongly refused on this basis, though profit and loss account and balance sheet
worked out on loose sheets of papers (which were unsigned) had been submitted before
the authorities; according to counsel it is not necessary that the requisite
entries pertaining to such division or distribution of profits 172 (or losses,
if any) should be made in the books in the selfsame year of account and
statement prepared by way of profit and loss account and balance sheet for
working out such distribution among the partners should have been regarded as
sufficient evidence of actual division of profits and in this behalf counsel
relied upon a decision of the Orissa High Court in Rao & Sons v. C.I.T.
Bihar and Orissa, 58 I.T.R. 685. Further counsel pointed out that such division
or distribution had been by making the relevant entries in the assessee's books
on the first day of the following year and books pertaining to the following
year containing such entries were produced before us at the hearing. In
substance counsel's contentions were that the refusal to grant registration to
the extent that it was based on the ground that no valid partnership in law had
come into existence was clearly unsustainable, that there was no evidence to
justify the finding on the genuineness of the appellant firm and that the High
Court having held that registration could not be refused merely on the ground
that some of the partners were benamidars registration ought to have been
granted to the assessee.
On the other hand counsel for the revenue
supported the refusal of registration by contneding that even if a valid
partnership in law could be said to have been brought into existence by
executing the Deed in question it was open to the taxing authority to refuse
registration on the ground that factually no genuine firm had come into
existence inasmuch as the two grounds were quite distinct from each other and
therefore assuming that some fault could be found with the finding of the lower
authorities on the question of validity of the appellant firm in law the
refusal to grant registration should not be interfered with as the adverse
finding on the genuineness of the appellant firm, for which there was ample
evidence on record, was sufficient to justify the order. As regards the
reframing of the first question counsel urged that it is well settled that it
is open to the High Court to reframe or recast a question formulated by the
Tribunal before answering it so as to being out the real issue between the
parties and since in this case the question No. 1 as formulated by the Tribunal
presumed or assumed the factual existence of the appellant- firm (which were
very much disputed before the taxing authorities) the High Court reframed it so
as to bring into focus the real issue between the parties namely, whether a
genuine firm had been constituted or not. Further counsel for the revenue
pointed out that the High Court had rightly observed that the Tribunal had,
though in a circuitous 173 manner, taken the view that the appellant firm had
not genuinely come into existence. Counsel agreed that under the 1922 Act no
provision similar to the Explanation to sec. 185 of the 1961 Act obtained and
further fairly conceded that the fact that some members were benamidars of
others in a firm could be no bar to the grant of registration as held in Abdul
Rahim & Co. case (supra) but contended that the said aspect was not
decisive of the matter and pointed out, as held that very decision, that
notwithstanding the said fact the firm must be found to be otherwise genuine
and therefore if the taxing authorities were to record an adverse finding on
the factual genuineness of the firm registration could be refused. On the point
of actual division or distribution of profits counsel urged that the lower
authorities were justified in not relying on loose sheets indicating the
working of such distribution especially when the sheets were unsigned and hence
unauthentic and the assessee cannot be allowed to fill the lacuna by producing
books for the following year in the fifth Court. On the aspect of the
genuineness of the firm requisite for the grant of registration counsel relied
upon two old decisions in Haji Ghulam Rasul-Khuda Baksh v. C.I.T. Punjab, 5
I.T.R. 506 and Bafi Zabdul Gafoor and others v. C.I.T.C.P. & U.P., 7 I.T.R.
625 which have been subsequently followed in
P.A. Raju Chettiar and Brothers v. C.I.T. Madras, 17 I.T.R. 51 and Hiranand
Ramsukh v. C.I.T. Hyderabad, 47 I.T.R. 598. Counsel for the revenue therefore,
pressed for the dismissal of the appeal.
On a consideration of the entire material on
record and on giving our anxious thought to the rival submissions made by
counsel on either side we are of the opinion that in the ultimate analysis the
real controversy in the appeal centres round the question whether or not
factually a genuine firm had come into existence for the Assessment Year
1961-62 as a result of the execution of the instrument of partnership on April
1, 1960 and whether for recording a negative finding thereon against the
assessee as done by the lower authorities there was evidence on the record?
This being the real issue which was not reflected in the first question
formulated by the Tribunal the High Court in our view was justified in
reframing that question. It is true that the taxing authorities and the
Tribunal did go into the question of the appellant-firm's validity in law but
it cannot be disputed that the concept of a firm being valid in law is distinct
from its factual genuineness and for the purpose of granting registration both
the aspects are relevant and must be present and one without 174 the other will
be insufficient. In other words, even if a firm brought into existence by
executing an instrument of partnership deed is shown to possess ail the legal
attributes it would be open to the taxing authority to refuse registration if
it were satisfied that no genuine firm has been constituted. Moreover, some of
the provisions contained in such instrument may not militate against the firm's
validity in law but these can be a pointer against its factual genuineness. The
instant case is clearly a case of that type. For instance, Clause 5 of the
Partnership Deed in question which vests the control and management of the
partnership business in the original two partners and denies to the four new
incoming partners any right in the management or the affairs of the accounts of
the partnership business may not show lack of the element of mutual agency but
surely has a vital bearing on the factual genuineness of the firm and read
along with other provisions like Clauses 3, 6, 7 and 8 would go a long way to
show that the four new incoming partners were not real partners but were
dummies thus throwing doubt on the genuineness of the firm.
Moreover, the facts that the four new
incoming partners were very close relatives of the two original partners and
that two of them were working as employees in the erstwhile firm whose services
as such were continued in the relevant year on existing remuneration with such
increments as the two original partners may agree to give cannot be lost sight
of.
In addition to these aspects the statements
of the four new incoming partners that were recorded in November 1965 clearly
show that they had signed the instrument mechanically without knowing or
reading, much less after understanding the implications thereof as we shall
indicate presently.
For instance, Hari Singh in his statement has
stated that he was not aware of the profits of the firm in any of the three
accounting years 1960-61, 1961-62 and 1962-63; he asserted that for the
relevant year 1960-61 the profit and loss account and balance-sheet were
prepared in the books and he had inspected these statements which assertions
are obviously false because admittedly no such profit and loss account nor
balance sheet was drawn up in the books. When asked as to whether Pal Singh and
Sadhu Singh had consulted the incoming partners before the Deed was written out
and executed he has emphatically given a negative answer and has added that
they (original partners) called all four of them and asked them to sign the
Deed which they did. Harbans Singh 175 in his statement admitted that he used
to do the work of painting but could not say how many factories the firm was
running nor did he remember the factory in which he used to do his work; he
further asserted that no witnesses were called when the Deed was signed which
is obviously a false assertion. Surjit Singh who passed his Intermediate Arts in
September 1960, B.A. in 1963 and LL.B. in 1965 has shown utter ignorance of
even the share ratio in the profit and loss of the new incoming partners; he
stated that he had two annas share in the profits but no share in the losses;
when questioned as to how he knew that losses were not to be shared by him he
stated that when he was a student of law he was taught that losses should never
be shared; he admitted that he had never read the deed which clearly shows that
he mechanically signed the document without even attempting to know what he was
signing; he was also ignorant of the fact whether he had withdrawn his share of
profit in the first year of the partnership, i.e. 1960-61. Gulzar Singh stated
that he was called from the village and was asked to sign the document which he
did without bothering to know its contents; in fact he admitted that he knew
nothing about the matter. These answers given by the four new incoming partners
clearly go to show that they were not real partners but mere dummies and the Deed
appears to have been executed merely as a cloak to secure registration and
thereby reduce the tax incidence.
Counsel for the assesee made much of the fact
that profit and loss account and balance sheet prepared on loose sheets of
paper had been submitted before the ITO and according to him these were wrongly
rejected on the ground that requisite entries in regard to division or
distribution of profits had not been made in the books in the self-same year of
account, which counsel urged, was not necessary. It must, however, be mentioned
that the profit and loss account statement so prepared on a loose sheet did not
contain any distribution of profits and or allocation thereof to each one of
the new partners but such distribution or allocation was indicated on a loose
paper on which the balance sheet was prepared but even that loose sheet was an
unsigned piece of paper and therefore, being unauthentic was rightly rejected
by the taxing authority. An attempt was made by counsel during the hearing of
the appeal to produce before us the books of account pertaining to the
following year in which on the opening day entries showing distribution of the
earlier years's profit had been made. But the late production of such books has
deprived 176 the taxing authorities an opportunity to make their comments
thereon. Apart from this aspect the question would be whether even such entries
were genuine entries intended to be acted upon or mere paper entries making a
show of allocation of the share of profits due to each one of these four new
incoming partners and this would require further investigation into relevant
facts. In this context it will not be out of place to mention that from their
statements it appears clear that none has made any withdrawal towards his share
of profit in any of the three years, 1960-61, 1961-62, 1962-63 and even after
the partnership had alleged to have been dissolved after 31.3.1963 and at least
one of them Hari Singh stated that a sum of Rs.73,600 became due to him as his
share of profits till dissolution and in spite of demand nothing had been paid
to him till his statement was recorded in November 1965. Only two of them drew
their remuneration as the employees. Considering their economic position it is
difficult to appreciate that they would have needed no withdrawal from their
share of profits in any year till the alleged dissolution. This aspect throws
considerable doubt on the point whether or not entries were intended to be
acted upon.
Having regard to the aforesaid discussion it
is clear that there was sufficient material on record on the basis of which the
taxing authorities as well as the Tribunal could record an adverse finding on
the genuineness of the firm against the assessee and registration in our view
was rightly refused.
We might observe that there was nothing wrong
on the part of the High Court to have confirmed the refusal of registration to
the appellant firm even after holding that the fact that some members were
benamidars of others was no bar to the grant of registration. In A. Abdul Rahim
and Co.'s case (supra) on which counsel for the assessee relied, the Tribunal
had held that one of the partners who had been inducted into the erstwhile
partnership was a benamidar of one of the three original partners but had
otherwise held that the partnership was genuine and valid and therefore, this
Court took the view that the mere fact that one member was a benamidar of
another as no bar to the grant of registration and directed registration but
the ratio would be inapplicable to a case where the firm is otherwise held to
be not a genuine one.
In the result the appeal fails and is
dismissed with costs.
A.P.J. Appeal dismissed.
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