9911796707
TMI Blog1977 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... n which date a draft of the partnership deed was duly drawn up on a plain paper. Later on when the necessary stamp paper was purchased on the 19th January, 1968, the same draft was typed thereon and without apprehending any irregularity and through inadvertence under a bona fide belief the partners signed the deed under the same date as was typed out in the draft because, it is said, they had formed the partnership on January 1, 1968 itself. A copy of the partnership deed has been marked as annexure '1'. Later on this mistake was detected by the partners and a fresh deed was also drawn up on the 24th January, 1968, on new stamp papers purchased on the 23rd January, 1968. For the assessment year 1969-70 an application for registration under s. 185 of the Act was filed by the petitioner before respondent No. 2 admittedly on the close of the corresponding accounting year. The ITO held that since the accounting year of the assessee ended on the 20th October, 1968, the application was within the time prescribed by the Act and the Rules. He, however, held on scrutiny of the original partnership deed, that though the stamp paper was purchased on the 19th January, 1968, it was purported to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its application in revision before the Commissioner under s. 264 of the Act; a copy of the order of the Tribunal has been marked annexure '9'. After having so exhausted all such remedies as were available to the petitioner under the Act, the petitioner moved this application which was duly admitted. The sole question for determination in this case is as to whether the order of refusal to register under the provisions of s. 185 or for that matter ss. 184 and 185 read with the relevant rules and the forms prescribed thereunder, can be said to be justified in law or not. To this aspect of the case on merits, we shall advert later. At the initial stage of hearing of this application, Mr. B. P. Rajgarhia, learned senior standing counsel for the revenue, took a preliminary objection to the maintainability of this application. He argued that this application ought to be held as barred on the principle of res judicata since an earlier application for the same relief had been withdrawn. We do not think there is any force in this objection. The petitioner has stated on affidavit in this petition which is supported by the application filed by it before the AAC again with an affidavit with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be said is that although the document is purported to have been executed on the 1st January, 1968, in fact it must be held to have been executed if not on the 19th January, 1968, when the stamp papers were purchased, at least before the 7th October, 1968, when the application in Form 11-A of the I.T. Rules, 1962, was filed by the petitioner. It was, therefore, argued that once it be held that the application was presented before the end of the relevant accounting year and the deed in question was executed some time in the course of the accounting year, and the deed in fact having been held to be genuine, the registration thereof could not be refused merely on the ground that there was some inadvertent mistake in typing out the contents of the deed on the stamp paper from a draft prepared earlier without making any change therein. We do not propose to detain ourselves on the question as to whether the explanation of the petitioner relating to the verbatim copying out from the draft is acceptable or not although this is certainly plausible. Whatever may have been the reason for the commission of the mistake the fact remains that the partnership deed in question was executed during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recital in the deed of partnership showed that it was written on October 31, 1959, and this was one of the main reasons why the registration was refused by the ITO and the Tribunal although the AAC in the first appeal preferred before him had allowed registration. Untwalia C.J., speaking for the Bench, held in such circumstances thus : " It is, therefore, obvious that there was a contradiction between the recital of the date of execution in the deed and its actual execution. The question for consideration was whether the deed could be held to be invalid only on that account, as has been held to be so by the Tribunal. It has missed a fundamental principle of interpretation of a document that the document has to be read as a whole, and if there is any conflict between one part of the document and the other, then effect has to be given to that part of the document which finds support from other facts and circumstances of the case. Hence, it is plain that the recital about the date of execution of the document on the 31st day of October, 1959, was incorrect. Stamps were purchased much later, and on those stamps the deed could not be executed on October 31, 1959." Relying upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59, and application for registration had been made on April 29, 1959. The Kerala High Court proceeding upon the footing that the document may have been signed some time between 23rd March and the 29th April, 1959, held that the registration could not be allowed for the assessment year 1960-61, since it could not be conclusively said that the document was executed before the close of the accounting year on the 31st March, 1959. If that be the ratio of the case there is no difficulty since in the present case, as shown above, the document was actually executed in the course of the relevant accounting year. If, on the contrary, it be held that a partnership, to be entitled to registration at all, must be in existence during the whole of the relevant accounting year, then, with great respect to the learned judges of the Kerala High Court, it must be held that the law has not been correctly laid down. All that the law requires is that, if the partnership deed is executed before the close of the relevant accounting year, even recording the verbal creation of the firm earlier in the year or before the commencement of the year, registration should be granted from the date of the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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