1. The question referred under Section 66(1) of Act 11of 1922 for the decision of this Court was;'Whether in the facts and in the circumstancesof the case, the assessee firm was bound to sendto the Income-tax Officer an estimate of the taxpayable by it before 15-3-1947 and pay the taxas required by Section 18-A (3), Indian-Income-taxAct, 1922.'
2. Though the question as framed does not really bring out the real point in issue, a mere enumeration of the dates and events that preceded the imposition of the penalty on the assessee should suffice to answer tbe question, even as it has been framed, in the negative and in favour of the assessee.
3. A partnership was formed on 28-12-1945, evidenced by an agreement in writing, and business was commenced on 24-1-1946. The partners adopted the Samvat year as the year of accounting, and the accounts were closed on 24-10-1946. The partnership deed itself was drawn on 2-6-1947, and the firm lodged its return of assessment on 14-7-1947 along with an application for the registration of the firm. The registration was ordered on 15-11-1947, on which date the assessment was, also completed on the footing that it was a registered firm.
At the same time, the Income-tax Officer issueda notice to the assessee firm calling upon it to show cause why penalty should not be imposed forcontravening the provisions of Sub-section (3) of Section 18-A of the Act. Eventually, a fine of Rs. 2500 was imposed. An appeal to the Assistant Commissioner of Income-tax and a further appeal to the Appellate Tribunal failed, and thereupon, the Tribunal referred this question under Section 66(1) of the Act,
4. Under Section 18-A, Sub-clause (3), the due date on which the estimate had to be furnished was 15th of March, and, in this case, it was 15-3-1947. On that date, the partnership was as yet unregistered. The application for registration was made on 14-7-1947, and it must be remembered the partnership deed itself was drawn on 2-6-1947, though the agreement to enter into partnership had been already drawn up on 28-12-1945.
Under Section 23(5), the registered partnership, as such is not liable to pay, except in the two contingencies specified in the two provisos; it is the partners of the registered firm that are liable to pay the income-tax, though, for the purpose of assessing' the income-tax payable by the individual partners, the firm is the unit. The assessee as such, whether by the term 'assessee' we mean the registered firm or 'the individual partners of the registered firm', was not really in existence on 15-3-1947. It was not the liability of the registered firm or of the individual partners thereof to furnish the estimate required by Sub-section (3) of Section 18-A. No doubt, the unregistered firm was in existence on 15-3-1947. It closed its accounts on 24-10-1946 for the assessment year 1947-48, and but for registration the unregistered firm would have been the assessee in the sense the assessee liable to pay the income-tax due. But, when eventually the assessment was completed, it was not the unregistered firm as such that was liable to pay. It was the individual members of the registered partnership that were liable to pay, and were really the assessces as defined by Sub-section (2) of Section 2 of the Act.
Section 28 (1) (a), which is the penal clause to be construed to justify the imposition of the penalty, has to be construed strictly as a penal clause. The assessee whether the registered firm or the individual members thereof really came to shoulder the liability to pay the assessed income-tax only on the date of the registration; and, on 15-3-1947, that' 'liability could not have been enforced. If the unregistered firm was under a liability to disclose its income and provide for payment of the income-tax in advance on 15-3-1947, it was not the unregistered firm that was eventually assessed. So, there was no possibility, in any event, of enforcing the' liability for failure to comply with Sub-clause (3) of Section 18-A, as far as the registered firm, and at any rate, as far as the individual members thereof were concerned. Therefore, there was no question of any default of either the registered firm or of the individual partners thereof. Therefore, there was no question of there being any liability to pay any penalty.
5. The question is answered in the negative andin favour of the assessee. Since the assessee hassucceeded, the Income-tax Department will pay thecosts of the assessee, Rs. 250/-.