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D.S. Mahadevasa and Co. Vs. Commissioner of Income-tax, Karantaka-ii - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberIncome-tax Reference Case No. 192 of 1978
Judge
Reported in(1984)38CTR(Kar)243; [1984]145ITR187(KAR); [1984]145ITR187(Karn); [1984]16TAXMAN355(Kar)
ActsIncome Tax Act, 1961 - Sections 184, 184(4), 184(5), 185 and 185(1); Income Tax Rules - Rule 22(2)
AppellantD.S. Mahadevasa and Co.
RespondentCommissioner of Income-tax, Karantaka-ii
Appellant AdvocateK.R. Prasad, Adv.
Respondent AdvocateK. Srinivasan, Adv.
Excerpt:
.....- section 184(4) of the 1961 act provides :the application shall be made before the end of the previous year for the assessment year in respect of which registration is sought :section 184(5) provides :the application shall be accompanied by the original instrument evidencing the partnership, together with a copy thereof :section 185(1) provides :on receipt of an application for the registration of a firm, the income-tax officer shall inquire into the genuineness of the firm and its constitution as specified in the instrument of partnership, and -(a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he has pass an order in writing registering the firm for the assessment year; the said proviso reads..........for grant of registration, an instrument of partnership must be in existence before the end of the previous year 2. whether the delay in executing the instrument of partnership beyond the accounting period can be condoned by the tribunal 2. briefly stated the facts are these : the assesses firm was constituted by a partnership deed dated july 8, 1971, brought into effect from march 1, 1971. on january 14, 1972, one of the partners died. the accounting year ended on march 31, 1972. on april 1, 1972, the new partnership deed was executed, which was retrospectively brought into effect from january 15, 1972. on august 27, 1973, an application for registration of the firm was presented before the ito with a request for condonation of the delay in filing it. the ito rejected the application on.....
Judgment:

Jagannatha Shetty, J.

1. The Income-tax Appellate Tribunal, Bangalore Bench has referred at the instance of the assessee, the following questions under s. 256(1) of the I.T. Act. 1961 :

'1. Whether the Tribunal was justified in law, on the facts and circumstances of the case, in holding that for grant of registration, an instrument of partnership must be in existence before the end of the previous year

2. Whether the delay in executing the instrument of partnership beyond the accounting period can be condoned by the Tribunal

2. Briefly stated the facts are these :

The assesses firm was constituted by a partnership deed dated July 8, 1971, brought into effect from March 1, 1971. On January 14, 1972, one of the partners died. The accounting year ended on March 31, 1972. On April 1, 1972, the new partnership deed was executed, which was retrospectively brought into effect from January 15, 1972. On August 27, 1973, an application for registration of the firm was presented before the ITO with a request for condonation of the delay in filing it. The ITO rejected the application on the simple ground that no partnership deed existed from January 15, 1972, to March 31, 1972. The appeal against the said order was dismissed by the AAC. Further appeal to the Tribunal was also dismissed. The Tribunal, however, has referred the above-said questions for the opinion of this court.

3. Mr. Prasad, counsel for the assessee, relying upon the first principle of law urged before us that there is no law that the firm should be constituted by a written deed. The instrument may come into existence at any time and it may relate back to any antecedent period and, when such retrospective instrument is brought into being, the authorities under the I.T. Act cannot refuse registration.

4. This contention may be attractive at the first sight; but it has no place for acceptance in the scheme of ss. 184 and 185 of the I.T. Act. The question whether the instrument of partnership must be in existence before the end of the accounting year is no longer res integra and it stands concluded by the decision of the Supreme Court in R. C. Mitter & Sons v. CIT : [1959]36ITR194(SC) . The Supreme Court, while considering s. 26A of the Indian I.T. Act, 1922, and the relevant rules thereunder, has observed (p. 198)

'It is clear from what has been said above with reference to the relevant provisions of the Act, that the certificate of registration has reference to a particular assessment year, and has effect for the assessment to be made for that particular year. In other words, the terms of the partnership should appear in the instrument of partnership in respect of the relevant accounting year. It is equally clear that the firm to be registered should have been in existence during the accounting year, 'constituted as shown in the instrument of partnership'.'

5. Again, it was further observed (p. 204) :

'... the conclusion is reasonably clear that unless the partnership business was carried on in accordance with the terms of an instrument of partnership which was operative during the accounting year, it cannot be registered in respect of the following assessment year.'

6. Mr. Prasad, however, urged that the ratio of the decision of the Supreme Court cannot be applied to the present case under the 1961 Act, since the provision of ss. 184 and 185 of the 1961 Act are quite different from the provisions of s. 26A of the 1922 Act. Under s. 26A of the 1922 Act, according to the counsel, an application had to be made to the ITO on behalf of the firm constituted under an instrument of partnership; whereas under s. 184 of the 1961 Act what is required is that the partnership must be evidenced by an instrument before making an application for registration.

7. We do not think that there is any substance in this contention. Section 184(4) of the 1961 Act provides :

'The application shall be made before the end of the previous year for the assessment year in respect of which registration is sought : ....

Section 184(5) provides :

''The application shall be accompanied by the original instrument evidencing the partnership, together with a copy thereof : ...'

Section 185(1) Provides :

''On receipt of an application for the registration of a firm, the Income-tax Officer shall inquire into the genuineness of the firm and its constitution as specified in the instrument of partnership, and -

(a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he has pass an order in writing registering the firm for the assessment year;....'

8. To make the picture complete, we may refer to the rules, Rule 22 (2) (ii)(b) of the I.T. Rules, 1962, provides that an application for the registration of a firm shall be accompanied by the original instrument or a certified copy thereof. The rule reads as follows :

'It shall be accompanied by the original instrument or instruments evidencing the partnership as in existence from time to time during the previous year up to the date of the application together with copies thereof. A certified copy of the instrument or instruments together with a duplicate copy thereof a be attached to the application if, for sufficient reason, the original instrument or instruments cannot be produced.'

9. It is clear from the above provisions that the application for registration is required to be filed before the end of the previous year for the assessment year in respect of which registration is sought. The application shall be accompanied by the original instrument evidencing the partnership or a duplicate thereof. In other words, the partnership should have been evidenced by an instrument executed before the end of the previous year and such an instrument of partnership can alone be submitted for registration. Similar view was taken by the Kerala High Court in CIT v. Joseph & George : [1970]77ITR292(Ker) .

10. Mr. Prasad in support of his contention next relied upon the proviso to s. 184(4) of the 1961 Act, which related to condonation of delay in making the application for registration. The said proviso reads :

'Provided that the Income-tax Officer may entertain an application made after the end of the previous year, if he is satisfied that the firm was prevented by sufficient cause from making the application before the the end of the previous year'.

11. Suffice it to state that this proviso cannot confer power on the ITO to condone the delay in the executions of the instrument. There is no law known to us in any beach conferring such power on an authority. The proviso only provides power for condoning the delay in making the application for registration. The contention of Mr. Prasad deserves to be summarily rejected.

12. In the result, we answer the first question in the affirmative and the second question in the negative and both the questions against the assessee.

13. Parties will pay and bear their own costs.


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