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TMI Blog1982 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 19th May, 1977 and the same was made effective from 3rd March, 1977. An application in Form No. 11A was filed on 30th July, 1977. As the application was not appended by the original deed of partnership or the copy thereof the ITO held that the requirements of ss. 184(3), 184(4) and 184(5) were not fulfilled. He accordingly refused to grant registration to the assessee firm for the year under appeal. 2. Being aggrieved the assessee carried the matter in appeal before the AAC (hereinafter referred to as 'AAC') and contended that Babuben, the wife of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... centred around the question is that the copy of the deed of partnership was not filed and that there was delay in filing the application in Form No. 11 and 11A. The copy of the deed of the partnership however was duly filed in course of assessment proceedings. The main stay of Shri Patel's contention was that the delay in complying the formalities was due to certain constrains placed on the widow of the deceased partner which prevented her from executing the deed earlier. It was true that compliance of conditions for registration was not an idle formality at the same time the conditions could not be looked at from isolation ignoring the realities of the situation. He next pointed out that a reply was sent to the ITO on 7th March, 1980 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm 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." "184(4). The application shall be made before the end of the previous year for the assessment year in respect of which registration is sought: Provided that the ITO may entertain an application made after the end of previous year, if he is satisfied that the firm was prevented by sufficient cause from making the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 30th June, 1977 along with a new deed of partnership which was executed on 19th May, 1977. Both the date of the application as also the date of the new deed is beyond the end of the previous year which had ended on 31st March, 1977. Now in this connection, the following observations in case of Rammohan Motor Service vs. CIT Hyderabad 1977 CTR (AP) 160 : (1979) 120 ITR 439 (AP) at page 438 are relevant: "Section 184 provides for application for registration. Sub-section (1) says that an application for registration of a firm for the purposes of the Act may be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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-s (5) by the assessee, by filing the original valid instrument along with the application on or before 31st of Dec., 1961. What the ITO can do under s. 184(4) is only to entertain an application even at a late stage if he is satisfied that the firm was prevented by sufficient cause from making the application before the end of the previous year. But he has no jurisdiction to grant registration on a partnership deed which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deed on 31st March, 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 of the previous 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 late 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 to reasons beyond the control of the assessee. But the power to condone the delay could not extend to a case in which the deed of partnership itself w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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