9911796707
TMI Blog1980 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 1963. Originally, in the said firm Mohinidevi and her two major sons, Lekhraj Vishandas, were the three fullfledged partners, whereas Gordhandas, Suresh Kumar and Laxman Das, other three sons of Mohini Devi, who were minors then, were admitted to the benefits of the partnership. When Gordhandas attained majority, the constitution of the said firm underwent a change and as per second deed of partnership dt. 15th Dec., 1967, Mohini Devi, Lekhraj, Vishandas and Gordhandas became fullfledged partners, whereas Suresh Kumar and Laxman Das being then minors, were admitted to the benefit of partnership. Again, on 1st Jan., 1972, the said partnership underwent a change of constitution and Mohini Devi with her four sons, Lekhraj, Vishandas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch commenced business from 2nd Jan., 1972. According to him, the deed was dt. 1st Jan., 1972 having Mr. Suresh Kumar as fullfledged partner, neither the said deed nor the application under s. 11A was signed by Shri Suresh Kumar. For the second deed dt. 23rd Dec., 1972, on the basis of which registration application in Form 11A was filed on 9th Jan., 1974, he observed that the said deed was operative only for one day and he also observed that neither of the two deeds resulted into a genuine firm during the relevant accounting period for asst. yr. 1973-74 and therefore he refused registration. 3. When this action of the ITO came to be disputed by the assessee before the AAC, he confirmed the action of the ITO in not allowing registration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the registration was cancelled by the ITO and the AAC in last para of his order has only observed that the application for registration in Form 11A submitted on 9th Jan., 1974 was not in accordance with the Rules. He drew out attention to s. 36 of the IT Act and relied upon Sita Ram Bhagwan Dass(1), in support of his contention. 4. The ld. Departmental Representative, on the other hand, besides relying upon the order of the lower authorities, submitted that the deed dt. 23rd Dec., 1972 was not effective for the whole accounting year and so far deed dt. 1st Jan., 1972 is concerned, it was invalid to the extent it was not signed by Suresh Kumar who was though major but shown as a minor and application based on that deed also is not sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 10 of his order has observed that the same is not as per Rules, though in para 7 of his order he has mentioned the said application to be beyond the time allowed. From the perusal of all the facts on record and both the partnership deeds dt. 1st Jan., 1972 and 23rd Dec., 1972, we are unable to accept the contention of the Departmental Representative that the firm in question was not genuine. The reliance of the Departmental Representative on a recent Allahabad High Court decision in the case of Setha Ram Dhanvir Singh(2) is misplaced. From the head note of the said case, we find that "the ITO can refuse registration to the firm if it is not a firm with the constitution specified in the partnership deed. The firm must actually exist. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AAC in para 2 and 3 of his order because so far defects in application are concerned, they were capable of being got rectified after the same were pointed out by the Revenue to the assessee and so far the defect in the partnership deed of Suresh Kumar's signature is not being there, the same arose out of a belief of other partners of the assessee-firm in good faith about the exact date when Suresh Kumar attained majority. Then, the defect, if any, was more than made up by execution of partnership deed dt. 23rd Dec., 1972 wherein all the partners were shown as fullfledged partners and Mr. Suresh Kumar as well was shown as a major. The said deed was not executed beyond the accounting year relevant to year of assessment under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical or ridiculous. All that the legislature intended was that the return should be duly filed and the declaration should be duly made and both the documents should be before the assessing authority at the time when he is applying his mind to the assessment of any particular firm. If he is then satisfied that the return has been duly filed and that there had been no change in the constitution of the firm and no change in the shares of partners and the firm was registered during the previous year, then the necessary advantage of renewal conferred by sub-s. (7) of s. 184 must undoubtedly follow to the assessee-firm. The declaration could not be held to be invalid for the reason that it was not filed along with the return". In the said case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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