Bharat Prakashan vs Commissioner of Income Tax, Gujarat

K.T. Desai, C.J.—This is a reference u/s 66(1) of the Indian Income Tax 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 Messrs. 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 Messrs. Bharat Prakashan registered u/s 26A of the Income Tax 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 Income Tax Officer

refused to register the firm. The matter was carried before the Appellate Assistant Commissioner and thereafter before the Income Tax Appellate

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 :

Whether Chandulal and Mafatlal can be said to have formed themselves into a firm constituted under an instrument of partnership for the purpose

of section 26A and as such eligible for registration for the assessment year 1955-56 ?

Section 26A of the Indian Income Tax Act, 1922, provides, inter alia, as under :

26A. (1) Application may be made to the Income Tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the

individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to

Income Tax or super-tax.

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 and Sons v. Commissioner of Income Tax, 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 section 26A of the Income Tax 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 u/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 Income Tax authorities.

In the result out answer to the question is in the negative. The assessee will pay to the Commissioner the costs of the reference.

Question answered in the negative.