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TMI Blog1990 (8) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout a fresh deed of partnership embodying the new constitution of the firm ?" The assessee is a partnership firm. It was constituted by a deed of partnership dated May 1, 1972. It comprised three partners, namely, Rajmohan Saha, Akhil Chandra Saba and Meghanand Saha. The firm, as evidenced by the said partnership deed, was registered by the Income-tax Officer, A-Ward, Tripura Circle, Agartala, under the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment year 1973-74. The benefit of continuation of registration was also granted for the assessment years 1974-75 and 1975-76. During the assessment year 1976-77, there was a change in the constitution of the firm. One of the partners, Shri Akhil Chandra Saha, ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal upheld the decision of the Appellate Assistant Commissioner and rejected the appeal of the Revenue. It was held by the Tribunal that the change could be effected by an agreement between the partners without undergoing the formality of executing a fresh partnership deed. It was, therefore, held that the application in Form No. 11 A was competent and that the firm was entitled to registration. Aggrieved by the decision of the Tribunal, the Revenue applied to the Tribunal under section 256(1) of the Act for reference of the question of law referred to above to this court. The application was allowed by the Tribunal and the present reference was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the constitution of the firm or in the shares of the partners should be made in Form No. 11A and should be accompanied by the original instrument or instruments evidencing the partnership as in existence from time to time during the previous year up to the date of the application. From the aforesaid provisions of the Act and the Rules, it is clear that the legal requirement, inter alia, is that a partnership is "evidenced by an instrument" ; what is an "instrument" has not been spelt out. The whole controversy, therefore, revolves round the meaning or true import of this expression. According to the Revenue, it means a formal deed of partnership and nothing less than that. The assessee's understanding of it is in the sense of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h had interpreted the expression "evidenced by an instrument" in the context of section 184 of the Act or the corresponding section of the Indian Income-tax Act, 1922, namely, section 26A. In this connection, we may first refer to the decision of the Calcutta High Court in Ramlal Murlidhar v. CIT [1930] 5 ITC 150, where it was held that registration cannot be refused merely on the ground that the instrument of partnership does not contain in itself the complete agreement constituting the partnership but requires supplementation by other evidence. We may next refer to the decision of the Bombay High Court in Chhotalal Devchand v. CIT [1958] 34 ITR 351, where Chagla C. J. observed (p. 361) : "So long as the terms are specified in any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f partnership." The latest decision that may be referred to is the decision of the Calcutta High Court in CIT v. East India Lamp and Components [1981] 129 ITR 426, where in a survey of a number of authorities, it was reiterated (at page 438 of the report) : "Thus, in our opinion, 'instrument' does not mean only a regular partnership deed but it may constitute any other formal transfer. If the terms of a partnership are contained in a number of documents or in the correspondence between the parties, the documents or letters would constitute the 'instrument of partnership'. " In view of the aforesaid discussion, we are of the clear opinion that, for the purpose of section 184 of the Act, it is not necessary that with every change of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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