BHARAT PRAKASHAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under S. 66(1) of the Indian IT Act. The assessment year with which we are concerned is the year 1955 56, the relevant accounting year being Samvat year 2010, i.e., the period commencing from 7th November, 1953, and ending on 26th October, 1954. There are two brothers by name Chandulal Gordhandas and Mafatlal Gordhandas. Mafatlal was born on 23rd October, 1935. At a time when Mafatlal was a minor, a deed of partnership was executed on 25th July, 1953, between Chandulal and Mafatlal purporting to constitute the firm of M/s Bharat Prakashan. In the deed of partnership it was stated that Chandulal was aged about 31 years and Mafatlal was aged about 19 years. This statement about the age of Mafatlal was obviously contrary to facts. Since Mafatlal was a minor at the date of execution of the deed of partnership, the purported contract certained in the deed of partnership was void and of no effect in law and no firm came into existence under the deed of partnership. Maftalal attained majority on 23rd October, 1953. On 10th January, 1955, an application was made by Chandulal and Mafatlal for having the firm of M/s Bharat Prakashan registered under S. 26A of the IT Act, 1922, and for the purpose of registration reliance was placed upon the deed of partnership as the instrument under which the firm was constituted. The ITO refused to register the firm. The matter was carried before the AAC and thereafter before the Tribunal. The Tribunal by its order dated 21st June, 1960, dismissed the appeal of the assessee. The assessee being aggrieved moved the Tribunal to refer certain questions of law arising out of the order of the Tribunal to this Court. The Tribunal thereupon referred the following question for decision by us :

(2.) IT is obvious that in order to be entitled to claim registration, the firm must be constituted under an instrument of partnership. The question which must therefore be answered in the present case is : Was the firm during the relevant period constituted under an instrument of partnership ? It is difficult to see how the firm in the present case could be said to be constituted under an instrument of partnership. At the date when the deed of partnership was executed, Mafatlal was a minor and no firm, therefore, came into existence under the deed of partnership. The firm came into existence after Mafatlal attained majority as a result of an oral contract since no instrument of partnership was admittedly executed after Mafatlal attained majority. The firm during the relevant period could not thus be said to be constituted under an instrument of partnership. It is no doubt true that for the relevant period Maftalal was not a minor, he having attained majority on 23rd October, 1953, but for reasons stated above, the partnership between Chandulal and Mafatlal for the relevant period could not be regarded as constituted under an instrument of partnership. Mr. M. M. Thakore, the learned advocate for the applicant, strenuously urged before us that, even though no firm was constituted under the deed of partnership, as the contents of the deed of partnership had been subsequently adopted both by Chandulal and by Mafatlal for the relevant period, a partnership had been validly constituted and that as the deed of partnership had been adopted by the firm, the firm was entitled to registration. He relied upon a decision of the Supreme Court in R. C. Mitter & Sons vs. CIT (1959) 36 ITR 194, but that decision far from supporting his contention provides a complete answer to it. In that case the Supreme Court has laid down that the words "constituted under an instrument of partnership" in S. 26A of the IT Act, 1922, include not only firms which have been created by an instrument of partnership but also those which have been created by word of mouth but have been subsequently clothed in legal form by reducing the terms and conditions of the partnership to writing. Firms which were created by word of mouth, but the constitution of which has subsequently been reduced in writing can also, therefore, be registered under S. 26A. Mr. M. M. Thakore was constrained to admit that the firm in question had been created by word of mouth after Mafatlal attained majority. He also conceded that no subsequent writing subsequent to the creation of the firm was executed which recorded the terms and conditions of the partnership or reduced to writing the constitution of the firm. This being the position, it is clear that according to the decision of the Supreme Court, the firm in the present case was not entitled to be registered and registration was rightly refused by the IT authorities.