9911796707
TMI Blog1997 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... o March 31, 1975, and April 1, 1975, to March 31, 1976. The following are the questions referred by the Tribunal : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in directing to allow registration to the firm when the partnership deed was defective ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the defect in the partnership deed can be rectified by a subsequent declaration from the guardian of the minor and, therefore, the registration to the firm can be granted ?" The respondent firm was an assessee on the files of the Inspecting Assistant Commissioner (Special), Agricultural Income-tax and Sales-tax, Kozhikode. It was being assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer the questions for decision of this court, the Revenue filed Original Petition No. 1253 of 1985 (see [1993] 203 ITR 638) for compelling reference. Pursuant to the judgment of this court in the above original petition, the Tribunal has referred the two questions mentioned above for decision of this court. The assessing authority declined registration relying on a decision of the Allahabad High Court in Addl. CIT v. Uttam Kumar Promod Kumar [1974] 97 ITR 730. The Tribunal, on the other hand, relied on another decision of the Allahabad High Court in Brij Rattan Lal Bhoop Kishore v. CIT [1982] 136 ITR 722 and held that even if there was a mistake in the original document or application, the firm should be given an opportunity to correct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... format is also prescribed under the rules. Rule 3 provides that the application in the prescribed form shall be accompanied by the original instrument of partnership under which the firm is constituted together with a copy thereof, Admittedly, in this case the minor was not made a full-fledged partner. He was only admitted to the benefits of the partnership. It is also not disputed that a declaration has been signed by the guardian of the minor concerned and was made available before the first appellate authority, to the effect that the minor was admitted to the benefits of the partnership with his knowledge and consent. In the light of the above admitted facts, the only question to be considered is whether such subsequent declaration by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Minors were admitted to the benefits of partnership, but their guardians had not given their assent in the instrument of partnership or by separate agreement at the time when the partnership came into existence. The Income-tax Officer, therefore, refused the claim for registration and proceeded to assess assigning the status of an association of persons. On the basis of affidavits filed by the guardians of minors, the Appellate Assistant Commissioner, before whom the assessee had taken up the matter in appeal, took the view that the guardians were fully aware of the terms and conditions under which the minors were admitted to the benefits of the partnership and they had assented to those terms and conditions. He, therefore, directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application which has to be accompanied by the instrument of partnership. We are, therefore, of the view that if the guardian of the minor has expressed his consent in any manner to the satisfaction of the authority, it would be sufficient compliance. We are also of the view that the Tribunal is justified in holding that the assessee was entitled to an opportunity to correct a mistake even if there was one in the application. In Brij Rattan Lal Bhoop Kishore v. CIT [1982] 136 ITR 722, the Allahabad High Court took the view that if an application for registration under section 185 of the Income-tax Act, 1961, was not personally signed by one of the partners of a firm, the Income-tax Officer ought to give an opportunity to the firm to r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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