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TMI Blog1982 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... the partnership which came into existence by a partnership deed dated 19-7-1975. The partnership would not stand dissolved in the event of death of the partner. Now on death of the partner Mafatlal, his wife Babuben was taken as partner and for this purpose a new deed was executed on 19-5-1977 and the same was made effective from 3-3-1977. An application in form No. 11A was filed on 30-7-1977. As the application was not accompanied by the original deed of partnership or the copy thereof the ITO held that the requirements of section 184(3), (4) and (5) of the Income-tax Act, 1961 ('the Act'), were not fulfilled. He, accordingly, refused to grant registration to the assessee-firm for the year under appeal. 2. Being aggrieved, the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 1978-79. There was thus no dispute about the genuineness of the firm. The only dispute centered around the question that the copy of the deed of partnership was not filed and that there was a delay in filing the application in Form Nos. 11 and 11A. The copy of the deed of the partnership, however, was duly filed in the course of assessment proceedings. The main stay of Shri Patel's contention was that the delay in complying with the formalities was due to certain constraints placed on the widow of the deceased partner which prevented her from executing the deed earlier. It was true that compliance with the conditions for registration was not an ideal formality; at the same time the conditions could not be looked at in isolation ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Income-tax Officer having jurisdiction to assess the firm, and shall be signed--- (a) by all the partners (not being minors) personally; or (b) in the case of a dissolved firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the legal representative of any such partner who is deceased. Explanation : In the case of any partner who is absent from India or is a lunatic or an idiot, the application may be signed by any person duly authorised by him in this behalf or, as the case may be, by a person entitled under law to represent him. (4) The application shall be made before the end of the previous year for the assessment year in respect of which registration is sought: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the application before the end of the previous year. Sub-section (5) makes it obligatory that the application shall be accompanied by the original instrument evidencing the partnership together with a copy thereof. The proviso empowers the ITO, for good and sufficient reasons, to accept a copy of the instrument certified in writing by all partners, etc. Now the facts of the case clearly show that the application in Form No. 11A was filed on 30-6-1977 along with a new deed of partnership which was executed on 19-5-1977. Both, the dates of the application as also the date of the new deed are beyond the end of the previous year which had ended on 31-3-1977. Now in this connection the following observations in case of Ramamohan Motor Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (4) of section 184, the application should have been made on or before 31st of December, 1961, for the assessment year 1962-63. However, the firm applied for registration on 30th June, 1962. Apart from this delay, there is the fatal defect in the application for registration, viz., the absence of any other instrument of partnership, other than the invalid one of 1955, in existence, by that time. The new partnership deed came into existence on 28th of June, 1962. Therefore, there was no possibility of complying with the mandatory requirement of sub-section (5) by the assessee, by filing the original valid instrument along with the application on or before 31st of December, 1961. What the ITO can do under section 184(4) is only to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of this power requires that the assessee could have filed an application for registration along with the deed on 31-3-1977 but could not do so due to a reasonable cause. It is, therefore, postulated that the application as also the deed must be in existence on the last day of the previous year. If the deed itself was not in existence on the last day of the previous year, but the same was drawn up on a later date, then the question of condoning the delay will not arise because the assessee could not have filed the application along with the deed on the last date. In other words, the delay could be condoned only if the deed was in existence on the last day of the previous year but could not be filed due to some reasons beyond the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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