9911796707
TMI Blog2006 (6) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... on 185(1) on February 29, 1972 on the basis of an application for registration in Form No. 11A filed on March 31, 1971, along with a certified copy of the deed of partnership. Later the Income-tax Officer on examination of the details of the partners on July 30, 1979, and July 31, 1979, respectively noticed that Paul Mathew (father) has forged signatures of three other partners by name Roy P. Mathews, Abraham Paul Mathews and Babu Paul Mathews in the deed of partnership dated July 1, 1970. Further it was also noticed that Roy P. Mathews was made a full-fledged partner with liability for losses, even though he was a minor at the relevant date since his date of birth was July 11, 1952, thereby violating the provisions of the Indian Partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that such procedure should be followed. Then alone, there will be a full, proper and effective consideration of the matter which will result in a proper final order being passed in. the case. Such a situation has not arisen herein. In the absence of such pre-requisites or preliminary steps, any order passed can only be considered as provisional or tentative but not final or conclusive or binding. We, therefore, decline to answer the question referred to this court but direct the concerned officer to afford an opportunity to the assessee to explain and, thereafter, pass final orders." The Income-tax Appellate Tribunal on the basis of the directions of this court set aside its order dated June 24, 1982, and directed the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner concurred with the view of the assessing authority and dismissed the appeal against which the original petition was preferred. The learned single judge held that there cannot be a retrospective registration of the firm for the assessment year 1972-73 and subsequent years on the basis of the partnership deed dated December 3, 1993, and accordingly dismissed the original petition. Counsel appearing for the assessee Sri P. Balakrishnan submitted that the authorities below have failed to appreciate the purport of the judgment of this court in Paul Mathews and Co. v. CIT [1992] 195 ITR 716 and contended that the authorities should not have cancelled the registration under section 186 of the Act for the assessment years 1971-72 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot become a partner, though with the consent of the adult partners he may be admitted to the benefits of partnership. Reference was also made to the decision of the apex court in N.T. Patel and Co. v. CIT [1961] 42 ITR 224. It has been held that registration under section 26A of the Act confers on the partners a benefit which the partners would not be entitled to but for section 26A. Further the right can be claimed only in accordance with the statute which confers it arid a person seeking relief under that section must bring himself strictly within the terms of that section. Further it is also held that unless the instrument of partnership specifies the individual shares of the partners, the instrument of partnership would not conform to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor was also made a partner by forging his signature. The contention was raised by counsel for the assessee that these defects ought to have been pointed out by the Assessing Officer in the event of which the assessee would have cured the defects. We are of the view, the assessee cannot claim any capital out of a forgery committed by it. The assessing authority cannot be found fault with for not making timely detection of the forgery committed by the party. It is the duty of the assessee to file a proper instrument of partnership duly signed by all the partners. The Assessing Officer came to know about the defects only on July 30, 1979, and July 31, 1979. The assessing authority has not committed any error and the forgery has been commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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