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Arun Oil Mill Vs. Commissioner of Income-tax, Poona - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberIncome-tax Reference No. 97 of 1969
Judge
Reported in[1979]119ITR813(Bom)
ActsIncome Tax Act, 1922 - Sections 26A; Income Tax Rules, 1922 - Rule 2
AppellantArun Oil Mill
RespondentCommissioner of Income-tax, Poona
Appellant AdvocateV.H. Patil, Adv.
Respondent AdvocateR.J. Joshi, Adv.
Excerpt:
.....the order passed by the taxing authorities as well as the tribunal refusing to grant registration to the firm. all the taxing authorities as well as the tribunal have come to the conclusion that there was no sufficient cause shown for condonation of..........as well as the tribunal refusing to grant registration to the firm. 2. arun oil mill, the assessee-firm was reconstituted by a deed dated november 16,1959. according to the partnership deed, there were seven partners and one minor one minor was admitted to the benefits of the partnership. one of the partners, abhaykumar, was out of india and the partnership deed was signed on his behalf by motichand, who was also a partner in the firm. the assessment year in question is 1961-62 for which the corresponding previous year is s. y. 2016 (accounting period ended on october 28, 1960). on september 12, 1960, an application for registration of the reconstituted firm was filed. this application was signed by all the partners, except abhaykumar and the minor. on behalf of abhaykumar,.....
Judgment:

Kantawala, C.J.

1. This reference has been made at the instance of the assessee against the order passed by the taxing authorities as well as the Tribunal refusing to grant registration to the firm.

2. Arun Oil Mill, the assessee-firm was reconstituted by a deed dated November 16,1959. According to the partnership deed, there were seven partners and one minor one minor was admitted to the benefits of the partnership. One of the partners, Abhaykumar, was out of India and the partnership deed was signed on his behalf by Motichand, who was also a partner in the firm. The assessment year in question is 1961-62 for which the corresponding previous year is S. Y. 2016 (accounting period ended on October 28, 1960). On September 12, 1960, an application for registration of the reconstituted firm was filed. This application was signed by all the partners, except Abhaykumar and the minor. On behalf of Abhaykumar, Motichand had signed the application as the person holding his general power-of-attorney. When the application for registration came up for hearing some time in the year 1965, this defect in the application came to the notice of the assessee-firm. Thereupon, on August 23, 1965, a fresh application was submitted by the firm, which was signed by Abhaykumar himself along with the other partners.

3. The assessment for the assessment year 1961-62 was completed in December, 1965, and on December 23, 1965, the ITO passed an order under s. 26A of the Indian I. T. Act, 1922, refusing registration to the firm. In his order, he pointed out that under s. 26A of the Act, registration can be granted only in accordance with the conditions laid down in that section and the rules framed thereunder. Rule 2 of the Indian I. T. Rules, 1922, provided that an application for registration has to be given before the end of the previous year, and it should be signed by all the partners personally.The earlier application was not signed by all the partners personally, while the later application, which was submitted on August 23, 1965, was signed by all the partners after the end of the previous year. As the later application which was signed by all the partners was delayed by four years and ten months, an application for condonation of delay on the ground of sufficient cause was submitted, but the said application was rejected by him, inter alia, on the ground that if the subsequent application could be got signed by Abhaykumar, there was no reason why the earlier application could not have been got signed by Abhaykumar in the manner it was done later. In the opinion of the ITO, there was no sufficient cause shown for condonation of delay in the filing of this valid application for registration, hence, he refused to grant registration. This order of the ITO was confirmed in appeal by the AAC and in the second appeal by the Tribunal.

4. The Tribunal pointed out that the defect in the original application was not a minor one and as the proper application signed by all the partners was filed only in the year 1965, the initial application, though defective, cannot be regarded as having been rectified with retrospective effect. It also declined to condone the delay on the ground that ignorance of law is no ground for excusing the delay. The Tribunal, accordingly, confirmed the orders of the taxing authorities refusing to grant registration to the firm.

5. In this reference, the following question has been referred to us for our determination :

'Whether, on the facts and in the circumstances of the case, the registration was rightly refused to the assessee for the assessment year 1961.6 ?'

6. Mr. Patil, on behalf of the assessee, submitted that the taxing authorities and the Tribunal ought to have condoned the delay in the making of application for registration, when in the year 1965, an application was made for registration signed by all the partners. He also relied upon a Circular issued by the Board, bearing No. F. N. 26/3/65-IT (A1), dated June 26, 1965, which is reproduced in Chadurvedi and Pithisaria's Income Tax Law, second edition, at pages 2010 and 2011. Relying upon this circular, he submitted that in any event this court should grant registration to the assessee-firm.

7. The procedure for registration of firms is laid down in s. 26A of the Indian I. T. Act, 1922. In sub-s. (2) of the said section, every application for registration shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form and be verified in such manner, as may be prescribed. Rule 2 of the Indian I. T. Rules, 1922, inter alia, provides that every application for registration of a partnership shall be signed by all the partners (not being minors) personally. Thus, it is quite clear that since the initial application was not signed by all the partners, it was not a proper application. It is settled law that so far as the provisions regarding registration of a partnership firm are concerned they are to be strictly complied with and any omission on the part of the assessee-firm to comply with the said provisions may justify the taxing authorities to refuse to grant registration. Further, under r. 2, so far as this firm was concerned, the application for registration was required to be made before the end of the previous year. The previous year ended on October 28, 1960, and the application for registration, which was made on September 12, 1960 did not comply with the provisions of r. 2. A proper application signed by all the partners, as required by r. 2 was made only on August 23, 1965. Since it was not presented within the time permitted by r. 2, it was required to be rejected, unless the delay was condoned on a sufficient cause being shown. All the taxing authorities as well as the Tribunal have come to the conclusion that there was no sufficient cause shown for condonation of delay. A finding as to the existence of a sufficient cause will normally be a finding on the question of fact and cannot be reagitated in an application for reference. Thus, having regard to the provisions of s. 26 A together with r. 2, the application for registration presented by the assessee-firm was liable to be rejected.

8. Reliance was placed by Mr. Patil upon the circular of the Board bearing No. F. N. 26/3/65/IT (A1) dated June 26, 1965. The provisions of this circular are of no assistance to Mr. Patil because the circular only applies to applications for registration made under the I. T. Act, 1961. There is nothing in the provisions of this circular to indicate that an application for registration made under the Indian I. T. Act, 1922, is even remotely governed by the circular or the principles laid down therein. This circular is, therefore, of no assistance to Mr. Patil.

9. In the result, the question referred to us is answered in the affirmative and in favour of the revenue. The assessee shall pay the costs of the reference.


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