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TMI Blog1968 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. Registration was renewed from year to year up to the assessment year 1956-57. Girdharilal, partner, died in July, 1954, during the accounting period corresponding to the assessment year 1955-56. In spite of Girdharilal's death, registration was renewed for the assessment years 1955-56 and 1956-57. An application for renewal of registration was filed for the assessment year 1957-58. This application for renewal was signed by Babu Lal, Suraj Prasad, Panna Lal and one Hari Shanker. It was explained on behalf of the firm that Girdharilal was dead ; and his share in the partnership is now represented by his son, Hari Shanker. The Income-tax Officer concluded that on these facts the firm was not entitled to renewal of registration. The applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act ...... (2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner as may be prescribed........ It will be seen that section 26A lays down two conditions. Firstly, an application must be supported by an instrument of partnership specifying the shares of partners. Secondly, the application must be in the prescribed form. We have to examine whether the assessee in the instant case fulfilled the two conditions. It was urged for the department that renewal was rightly refused in the present case, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm is altered and therefore the new firm cannot apply for the renewal of registration. " The learned Advocate-General appearing for the assessee distinguished the present case from the case before the Lahore High Court on the ground that in that case the trustees had the option of joining the partnership, whereas in the present case Hari Shanker automatically became a partner of the firm, Pannalal Babulal. Unfortunately, there is on the record no copy of the partnership deed dated October 30, 1956. It appears from the judgment of the Tribunal that it was argued before the Tribunal on behalf of the assessee that there was a provision in the partnership deed that the death of a partner would not dissolve the firm, and the heir of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are, therefore, prepared to assume with the assessee that Girdharilal's death in 1954 did not have the effect of dissolution of the firm. The firm established in 1942 continued even after the year 1954. The learned Advocate-General urged before us that Girdharilal's son, Hari Shanker, became a partner automatically upon Girdharilal's death. This contention finds support from the observation made the Orissa High Court in Girdharilal's case quoted above. But we have some doubt as to whether Hari Shanker became a partner of the firm automatically. Even if the deed of partnership provided that the heir of a partner would be a partner in any firm upon the death of the original partner, the heir would be at liberty not to join the partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered." It will be seen that the form prescribed under rule 6 made it necessary for the partners to certify that the constitution of the firm is the same as the constitution when the instrument of partnership was registered. In the present case, the instrument of partnership was registered for the year 1944-45. At that time Girdharilal was alive. Now Girdharilal is dead, and his share is represented by his son, Hari Shanker. The Tribunal rightly observed that where a partner dies and his son steps into his shoes, the constitution of the firm is necessarily changed. Under such circumstances, it became impossible for the present partners to certify as required by clause (2) in the prescribed form. We do not know if the applicants gave the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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