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TMI Blog1983 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the assessee, when directed by this court to do so, and that question is this : Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law to hold the assessment under section 144 and grant of registration were not in two parts and the registration order passed therein was also set aside u/s. 146 along with the assessment order and, if not, whether the Income-tax Officer could cancel the registration already granted in the manner done by him without resorting to section 186 ? " The latter question arises in the connected I.T.R. No. 708 of 1978. The year in question is 1968-69. The deed of partnership is on the record of the case before us and the relevant conditions are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rupee. 11. Sri Bhupendra Swarup Mathur-Eight upon nine annas in rupee. 12. Sri Surendra Swarup Mathur-Eight upon nine annas in rupee. " Provided further in case the loss falling to the share of the minor cannot be set off as provided in clause 8 above, the same shall be borne by the parties of the 4th to 11th parts in equal proportions. " The Income-tax Appellate Tribunal has taken the view, following some decisions of this court, that on the attainment of majority by minor, admitted to the benefits of partnership, a change in the constitution of the firm takes place. And, consequently, it held that the benefit of registration would not be available to the firm in the year following the attainment of majority by such a minor p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tner. When a minor becomes major, and on his opting becomes a partner within the meaning of the Indian Partnership Act, no change occurs in the constitution of the firm under the I.T. Act. The instrument of partnership evidences the same number and identity of partners as before. An instrument of partnership has to be reasonably construed in the background of the general law. If an instrument provides that a minor who has been admitted to the benefits of the partnership will become partner if he so elects on his attaining majority, there is no difficulty. But if an instrument confers on a minor the benefits of the partnership and then it is silent, the general law will apply; and it will be deemed that in view of s. 30 of the Indian Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained, it will be a case where the instrument of partnership does not evidence the change in the shares. The important thing is not that there should be no change at all, but that if there is a change it must be evidenced by the original instrument. " In view of the law so declared, it is obvious that on the conditions aforesaid in the instrument of partnership it could not be said that change in the constitution of the firm had taken place upon Surendra Swarup Mathur attaining majority. The first question, therefore, is to be answered in the negative, in favour of the assessee and against the Department. In view of our answer to the first question, it is not necessary to record any opinion on the second question which has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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