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Dilipsinhji P. Desai and Brothers Vs. Commissioner of Income-tax, Gujarat - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberIncome-tax Reference No. 20 of 1961
Judge
Reported in(1963)0GLR665; [1964]54ITR91(Guj)
ActsIncome Tax Act, 1922 - Sections 26A; Income Tax Rules, 1922 - Rule 6; Indian Partnership Act, 1932 - Sections 30
AppellantDilipsinhji P. Desai and Brothers
RespondentCommissioner of Income-tax, Gujarat
Appellant Advocate M.M. Thakore, Adv.
Respondent Advocate J.M. Thakore, Adv.-General
Excerpt:
- - the tribunal, however, took the view that as laxmansinhji had attained majority on 29th june, 1953, it was necessary that the applications for registration should have been signed by laxmansinhji and, as he had failed to sign the same, registration was properly refused......year with which we are concerned is the year 1954-55, the relevant accounting year being samvat year 2009. dilipsinhji p. desai and rajendrasinhji p. desai executed a deed of partnership dated 1st july, 1952, whereunder it was provided that they had admitted to the benefits of the partnership of dhilipsinhji p. desai and bros. their four minor brothers, laxmansinhji, kirtisinhji, chetansinhji and sureshsinhji. it was provided that they had been so admitted to the benefits of the partnership from kartak sud i, samvat year 2006, i.e., 21st october, 1949. out of the aforesaid four persons who were minors, sureshsinhji was born on 7th february, 1951 i.e., long after 21st october, 1949. 2. an application was made for registration of that firm under section 26a for the assessment.....
Judgment:

K.T. Desai, C.J.

1. This is reference under section 66(1) of the Indian Income-tax Act, 1922. The assessee in this case is the firm of Dilipsinhji P. Desai & Bros. The assessment year with which we are concerned is the year 1954-55, the relevant accounting year being Samvat Year 2009. Dilipsinhji P. Desai and Rajendrasinhji P. Desai executed a deed of partnership dated 1st July, 1952, whereunder it was provided that they had admitted to the benefits of the partnership of Dhilipsinhji P. Desai and Bros. their four minor Brothers, Laxmansinhji, Kirtisinhji, Chetansinhji and Sureshsinhji. It was provided that they had been so admitted to the benefits of the partnership from Kartak Sud I, Samvat year 2006, i.e., 21st October, 1949. Out of the aforesaid four persons who were minors, Sureshsinhji was born on 7th February, 1951 i.e., long after 21st October, 1949.

2. An application was made for registration of that firm under section 26A for the assessment year 1953-54, the accounting period being Samvat Year 2008. The firm was accorded registration under the provisions if the said section 26A. The firm continued it existence during the accounting Samvat year 2009, the period being 19th October, 1952, to 6th November, 1953. Laxmansinhji, who was a minor during Samvat year 2008, attained majority on 29th June, 1953. On 3rd November, 1953, he elected to become a partner form 7th November, 1953, i.e., Kartak Sud 1, Samvat year 2010. On 30th January, 1954, a new deed of partnership was executed showing Dilipsinhji, Rajendrasinhji, and the aforesaid Laxmansinhji as partners in the firm. Kirtisinhji, Chetansinhji and Sureshsinhji were admitted to the benefits of that partnership. On 23rd April, 1954, an application was made for registration of the firm which existed during the accounting Samvat year 2009. That application was signed only by Dilipsinhji and Rajendrasinhji. That application considered by the Income-tax Officer who, by his order dated 27th September, 1958, refused to accord registration to the firm on the ground that Laxmansinhji, who had attained majority on 29th June, 1953, during the course of Samvat year 2009 and who was an adult at the time when the application was made, had not signed the application for registration. Another ground on which the application was refused was that Sureshsinhji, who was not even born in Samvat year 2006, had been given the benefits of the partnership from a date anterior to his birth. An appeal was filed before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner took the view that registration had been wrongly refused and directed that registration should be granted. The matter was carried further to the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal took the view that the fact that Sureshsinhji was admitted to the benefits of the partnership from Kartak Sud 1, Samvat year 2006, was not a valid ground for refusing registration as the firm as shown in the instrument of partnership was in existence during the relevant accounting period. The Tribunal, however, took the view that as Laxmansinhji had attained majority on 29th June, 1953, it was necessary that the applications for registration should have been signed by Laxmansinhji and, as he had failed to sign the same, registration was properly refused. At the instance of the assessee this reference has been made to us for the purpose of decision of the following question :

'Whether the assessee firm is entitled to renewal of registration under section 26A of the Indian Income-tax Act for the assessment year 1954-55 ?'

3. The short point fort determination is whether it was obligatory on Laxmanshinhji to sign the application for renewal that had been made on 23rd April, 1954. The relevant rule which we have to consider in this connection is rule 6 framed by the Board of Revenue in exercise of the powers conferred upon it by section 59 of the Indian Income-tax Act, 1922. That rule runs as under :

'Any firm to whom a certificate of registration has been granted under rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year. Such application shall be signed personally by all the partners (not being minors) of the firm...'

4. What we have to consider is whether the expression 'shall be signed personally by all the partners (not being minors) of the firm' covers the case of Laxmansinhji. Laxmansinhji had attained majority during the accounting period, namely, Samvat year 2009, i.e., the period commencing from the 19th October, 1952, and ending with 6th November, 1953, both days inclusive. He having attained majority on 29th June, 1953, could not be regarded as a minor. It was strongly urged on behalf of the assessee that, under the provisions contained in section 30 of the Indian partnership Act, Laxmansinhji had, within six months of the date of his attaining majority, a right to elect to that effect and that under the provisions contained in section 30, sub-section (5), of the Indian Partnership Act, 1932, his position as regards the firm would be determined by such notice. It is further provided by section 30, sub-section (5), that if he fails to give such notice he would become a partner in the firm on the expiry of the said period of six months. From the record it does not appear that any such public notice had been given, as is contemplated by section 30, sub-section (5). From the statement of facts it appears that he had elected to become a partner as from Kartak Sud 1, Samvat year 2010, with the result that having regard to the provisions contained in section 30 of the Indian Partnership Act, under sub-section (7) thereof, his rights and liabilities as a minor continued up to the date on which the became a partner. It has been strongly urged by Mr. M. M. Thakore that as during the accounting Samvat year 2009 Laxmansinhji had only the same rights and liability which he had when he was a minor, it was not necessary for him to sign the application for renewal of registration. The provisions of rule 6 which are mandatory require that the application shall be signed by all the partners of the firm except those who are minors. The Income-tax Act has provide by section 2(6B) a definition of the expression 'partners'. It is there laid down that in the Indian Income-tax Act, 1922, unless there was anything repugnant in the subject or context, the expression 'partner' had the same meaning as in the Indian partnership Act, save and except that the expression 'partner' included any person who being a minor had been admitted to the benefits of the partnership. By section 59, sub-section (5), it has been provided that the rules made under that section shall be published in the official Gazette and shall thereupon have effect as if enacted in the Act itself. In view of the aforesaid provisions, the expression 'partner' appearing in rule 6 must be deemed to include persons who being minors had been admitted to the benefits of the partnership. But for the use of the words '(not being minors)', it would have become necessary for persons who were minors to sign the application. Having regard to the provisions contained in rule 6, it is request that all partners who are not minors should sign the application for renewal under rule 6. Apart from the fact that Laxmansinhji was not a minor at the time when the application for registration was made he was not a minor from 29th June, 1953, to 6th November, 1953, during the accounting period, i.e Samvat year 2009. In view of that circumstances, it appears to us to be clear, having regard to the provisions of rule 6 that it was necessary that he should have signed the application for renewal made under rule 6. As he was not signed the application the same was liable to be rejected. The result may be unfortunate, but we cannot says that the Tribunal erred in coming to the conclusion that the firm, on the facts and in the circumstances of the case, was not liable to be registered.

5. In the result, we answer the question in the negative. The assessee will pay to the Commissioner the costs of the reference.

6. Question answered in the negative.


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