9911796707
TMI Blog1948 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... for 1944-45 (accounting year ended 5th July, 1943). The three individuals who are the partners of the respondent firm executed a deed of partnership on the 30th August, 1939, in and by which it was declared that they shall carry on business in partnership for a period of three years from 28th May, 1939. It was inter alia provided in that deed that on the expiration of three years, if there is no unity between the partners, after paying off all the liabilities of the firm, and after taking back the capital contributed by the partners, the balance of profit or loss shall be divided equally; if any dues to the firm remain uncollected, and if proceedings have to be instituted, No. 1, Arokiaswamy Chetty shall attend to them. The firm was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting period and it was sufficient if the partners and the shares remained unaltered. The Tribunal disagreed with the Appellate Assistant Commissioner on the first point. They held that once the period of three years was over, the deed ceased to be operative, i.e., after the expiry of the 29th May, 1942. But they held that under the provisions of Section 26A of the Act and the relevant rules framed under the Act, it was not necessary that there should be an instrument operative at the time of the application for the grant of a renewal of registration already granted when a deed of partnership was in force. In coming to this conclusion they relied upon Section 17 of the Partnership Act. The Commissioner of Income-tax thereupon made an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that in this case the application was signed personally by all the partners of the firm and it complied with all the requisite conditions because it was stated that the partners and the shares remained unaltered. But, in our opinion, there is one fundamental defect in the application which precludes the respondent from taking advantage of rule 6. According to the finding of the Tribunal the firm constituted under the deed of partnership came to an end on the 29th May, 1942. On this finding it must follow that on the date of the application in this case, there was not in existence the firm to whom a certificate of registration was originally granted under rule 4. That firm must be deemed to have come to an end on the expiry of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain renewal of registration. No other rule has been relied upon to support the conclusion of the Tribunal. For the assessee it was sought to be contended that the Tribunal erred in its finding that the deed ceased to be operative after the expiry of 29th May, 1942. It was said that according to the terms of the deed it must be construed as a deed providing for a partnership for three years in the first instance and thereafter at will. Objection was taken on behalf of the department that it is not competent to this Court to go into that question as it was an independent question of law which had not been referred to this Court. The learned counsel for the assessee conceded that if it be held that the question as to whether the deed was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indings of law which have not been sought to be questioned by either the assessee or the Commissioner by an application for reference. One of the facts in this case is that the Tribunal held that the deed of partnership was not operative after the 29th May, 1942, and there was no application for a reference on the question as to the correctness of that finding. We do not therefore think that there is anything in the frame of the question which compels this Court to deal with the question of law with reference to which there has been no application to refer to this Court. We therefore hold that the assessee is not entitled to be heard on the question whether the finding of the Tribunal that the deed of partnership ceased to be in force after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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