Skip to content


N. T. Patel and Co. Vs. Commissioner of Income-tax Madras. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCase Referred No. 62 of 1957
Reported in[1958]34ITR198(Mad)
AppellantN. T. Patel and Co.
RespondentCommissioner of Income-tax Madras.
Cases ReferredShaik Mohamed Rowther v. Commissioner of Income
Excerpt:
.....individual shares of the partners. we are, however, unable to agree with the tribunal, that the deed of partnership, after it had been rectified by the further deed dated september 17, 1955, still failed to specify the shares of the individual partners. in that case an application for registration of the firm was made in august, 1951, in respect of the year of account which ran from november 2, 1948, to october 21, 1949, on the basis of a deed of partnership dated october 26, 1950, which itself was beyond the year of account which had ended on october 21, 1949. the assessee made a second application on september 12, 1949. the assessee made a second application on september 12, 1951, and produced an agreement of that date which satisfied the requirements of section 26a of the act. on.....rajagopalan, j. - the assessee firm consisting of six partners was constituted by the deed of partnership dated march 29, 1954, which came into effect from april 1, 1954. the specific provision in the earlier deeds of partnership for the division of profits in proportion to the capital contributed by each of the partners was unfortunately omitted to be included in the deed dated march 29, 1954. this omission was noticed in the course of the proceedings before the income-tax officer, when the firm applied for registration under section 26a of the income-tax act for the assessment year 1955-56. the year of account had ended on march 31, 1955. on september 17, 1955, the partners executed another document, which was supplemental to the deed of partnership dated march 29, 1954, and which.....
Judgment:

RAJAGOPALAN, J. - The assessee firm consisting of six partners was constituted by the deed of partnership dated March 29, 1954, which came into effect from April 1, 1954. The specific provision in the earlier deeds of partnership for the division of profits in proportion to the capital contributed by each of the partners was unfortunately omitted to be included in the deed dated March 29, 1954. This omission was noticed in the course of the proceedings before the Income-tax Officer, when the firm applied for registration under section 26A of the Income-tax Act for the assessment year 1955-56. The year of account had ended on March 31, 1955. On September 17, 1955, the partners executed another document, which was supplemental to the deed of partnership dated March 29, 1954, and which provided : 'the parties hereto agree to rectify that error though the same subject matter is clear from clauses 11, 34 and 41-A of the deed, dated March 29, 1954. We hereby agree that for purposes of clarification the following clause shall be added as clause 20-A in the partnership instrument dated March 29, 1954. The parties hereto shall be entitled to shares in the profits and losses of the firm in proportion to the contribution of the capital of each of the partners and whenever fresh capital is required for the business, each partner shall be liable to contribute the additional capital in the same proportion as the paid up capital referred to in clause 4 of the deed dated March 29, 1954.' None the less the registration was refused for the assessment year 1955-56 and that decision was eventually confirmed on appeal by the Tribunal.

Under section 66(1) of the Act, the Tribunal referred to this court : 'Whether the assessee firm is entitled to registration under section 26A of the Income-tax Act for the assessment year 1955-56.'

Learned counsel for the assessee urged agains before us the contention rejected by the Tribunal, that, even without clause 20-A added to the terms of the partnership on September 17, 1955, the deed dated March 29, 1954, satisfied the requirements of section 26A, and that it specified the individual shares of the partners. Learned counsel submitted that clauses 4, 11, 34 and 41(a) of the deed dated March 29, 1954, - it may not be necessary to set them out - led to the inference, that was made explicit in clause 20 - A which was subsequently added, that the profits were to be apportioned among the partners in proportion to their contribution of capital. Clause 4 only specified the contribution of capital. Clauses 11, 34 and 41(a) each provided for a contingency other than the division of the normal profits of the firm in relation to the capital subscribed under clause 4. The Tribunal was right in holing that without clause 20 - A there was no specification of the individual shares of the partners. It is not therefore necessary for us to decide in these proceedings whether an inference that could be drawn from the other terms of the deed of partnership would satisfy the test of specification of the shares prescribed by section 26 A of the Act.

We are, however, unable to agree with the Tribunal, that the deed of partnership, after it had been rectified by the further deed dated September 17, 1955, still failed to specify the shares of the individual partners. The provision in clause 20A read with clause 4 was specific enough to satisfy the requirements of section 26A. But that specific provisions was made only on September 17, 1955, i.e., after the close of the year of account relevant to the year of assessment. Did that satisfy the requirements of section 26A to enable the assessee to obtain the statutory right of registration in the year of assessment is the question.

In Shaik Mohamed Rowther and Co. v. Commissioner of Income-tax, the deed was executed on July 22, 1949, but it purported to give effect to the dissolution of the partnership as on March 28, 1949. The principle applicable to constitution of partnership as laid down by Rowlatt, J., in Waddington v. Ocallaghan [1931] 16 Tax Cas. 187., was extended to dissolution of partnership by a Division Bench of this court, and it was held that the date of the dissolution was July 22, 1949, however, the rights inter se the contracting parties were regulated.

In Waddington v. Ocallaghan [1931] 16 Tax Cas. 187., Rowlatt, J., held : 'When people enter into a deed of partnership and say that they are to be partnership and say that they are to be partners as from some date which is prior to the date of the deed, that does not have been effect that they were partners from the beginning of the deed. You cannot alter the past in that way. What it means is that they begin to be partners at the date of the deed, but then they are to take accounts back to the date that they mention as from which the deed provides that they shall be partners.'

The learned counsel for the assessee relied on Commissioner of Income-tax v. Shantilal Vrajlal and Chandulal Dayalal and Co. In that case an application for registration of the firm was made in August, 1951, in respect of the year of account which ran from November 2, 1948, to October 21, 1949, on the basis of a deed of partnership dated October 26, 1950, which itself was beyond the year of account which had ended on October 21, 1949. The assessee made a second application on September 12, 1949. The assessee made a second application on September 12, 1951, and produced an agreement of that date which satisfied the requirements of section 26A of the Act. On these facts the learned judges allowed the application for registration ; they held that even the second application dated September 12, 1951, which satisfied the requirements of section 26A of the Act, was enough to grant the registration sought under section 26A. This court has not shared the view taken by the Bombay High Court - see also Dwarkadas v. Commissioner of Income-tax - that the requirements of section 26A are satisfied when the deed of partnership came into existence after the year account. With all respect to the learned Judges of the Bombay High Court we see no reason to depart from the principle that underlay the decision of this court in Shaik Mohamed Rowther v. Commissioner of Income-tax.

In our opinion, what section 26A of the Act requires is the factual existence in the year of account of an instrument of partnership, which further specifies the individual shares of the partners. It is only then that the statutory right of registration can be claimed and registration can be granted in the relevant year of assessment. That test the assessee unfortunately failed to satisfy. There was, no doubt, a deed of partnership in existence in the year of account 1954-55. But that deed itself did not specify the shares of the individual partners. The specification of shares was only on September 17, 1955, though that left intact the constitution of the partnership under the earlier deed dated March 29, 1954. The effect was that the requirements of section 26A were satisfied only on September 17, 1955, but that was beyond the year of account. That the rectification effected on September 17, 1955, governed the rights and liabilities inter se as from April 1, 1955, could in no way enlarge their statutory right under section 26A of the Act. As we have already pointed out, for the purpose of section 26A there was a specification of shares only on September 17, 1955.

The Tribunal, in our opinion, was right in refusing registration in the year of assessment 1955-56. We answer the question in the negative and against the assessee. The assessee will pay costs of this reference. Counsels fee Rs. 250.

Question answered in the negative.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //