9911796707
TMI Blog1984 (7) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... Cyriac, party No. 6, was aged only seventeen years and was, therefore, a minor represented by his father and guardian, who is party No. 1. Cyriac reached the age of majority on July 26, 1964. For the assessment year 1964-65, the assessee-firm filed et nil " return on the basis of which the assessment for that year was completed. For the assessment years 1965-66 and 1966-67, the assessee filed applications in Form No. 11 for registration of the firm. It is not disputed that the application for the assessment year 1966-67 had been signed by all the partners, including Cyriac, who had attained the age of majority in the year previous to the assessment year 1965-66. The Revenue has no case that any material particulars had been suppressed by the applicants or that the firm had not in actual fact existed during the relevant accounting years or that its real object was different from its avowed object or that it was a sham or pretence and not intended by the parties to govern their rights and liabilities inter se in relation to their business. It must be noticed that for the assessment year 1966-67, the assessee did not apply for continuation of registration, but for fresh registration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed registration. Such a registration is not liable to be cancelled. Section 186 does not confer power on the ITO to cancel the registration which had been validly granted. In the absence of any ground to show that no genuine firm existed during the relevant previous year, the Officer exceeded his powers in cancelling the registration. These are the respective contentions of the parties. We shall now consider the relevant provisions. Section 184 provides that an application for registration has to be accompanied by an instrument evidencing the partnership and in which the individual shares of the partners are specified. The application has to be made to the ITO in the prescribed form, that is Form No.11, as provided under r. 22 of the I.T. Rules, 1962 (the "Rules "). It shall be signed by all the partners and they are required to make a declaration as to the relevant facts. The form together with the instrument evidencing the partnership and a certified copy thereof must be produced before the Officer. These documents together constitute the application. The application shall be made before the end of the previous year relevant to the assessment year in respect of which registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the firm a reasonable opportunity of being heard and with the previous approval of the Inspecting Assistant Commissioner, cancel the registration of the firm for that assessment year: Provided that no such cancellation shall be made after the expiry of eight years from the end of the assessment year in respect of which registration has been granted or has effect ...... Where the registration of a firm is cancelled for any assessment year, the Income-tax Officer shall amend the assessments of the firm and its partners for that assessment year on the footing that the firm is an unregistered firm ...... " This section empowers the Officer to cancel registration if he is of the opinion that during the previous year there was no " genuine firm " in existence as registered. Before he passes any such order, a reasonable opportunity of being heard has to be given to the firm and the previous approval of the IAC has to be obtained. Upon cancellation of the registration, the Officer has to amend the assessments of the firm and its partners for the relevant assessment year on the basis that the firm is an unregistered firm. However, no cancellation can be made after the expiration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrument which was operative during the accounting year: See R. C. Mitter and Sons v. CIT [1959] 36 ITR 194 (SC). It is not necessary that the instrument had been signed by all the partners, provided those who did not sign it assented to it in unmistakable terms by presenting an application in the proper form duly signed by them jointly with the others who are signatories to the instrument: Jagan Nath Pyare Lal v. CIT [1973] 92 ITR 207 (Punj); CIT v. C. Dwarkadas and Co. [1971] 80 ITR 283 (Bom); Bulchand v. CIT, AIR 1930 Sind 301 and In re Ramlal, AIR 1931 Cal 682. It must be stated that, in the present case, there is no dispute that in actual fact the firm existed during the relevant previous year. The sole contention of the Revenue, as seen above, is that the instrument on the basis of which registration was granted was invalid in so far as a minor had been admitted as a full partner. There is no doubt that if that contention were right, the instrument would be invalid for the purpose of registration. That, however, is not the case here. From the facts stated above, it is clear that though Cyriac was minor on the date of execution of the deed, that is on December 10,1963, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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