In Re: Purshotam Bhanji and Co.

The question in this reference also has not been categorically formulated. We shall state the facts to make the point, which has been referred to us for our opinion, clear.

It appears that the assessees in this case, namely, the Firm of Messrs. Purshottam Bhanji & Co., were served with a notice on May 15, 1923, u/s 22(2) of the Income Tax Act, 1922, to make a return in the prescribed form with reference to the total income during the previous year. According to the provisions of that subsection the return was required to be made in thirty days from the date fixed in the notice, i.e. by June 15, 1923. No return was made in time. The assessing authority did not make the assessment on the income but called upon the firm to produce the account-books. On December 3, the firm submitted the return to the authority. Under sub s.(3) of Section 22 if a return is submitted at any time before the assessment is made, the return so made shall be deemed to be a return made in due time under that section. Accordingly the return was accepted. It appears, however, that on that day a representative of the firm applied for registering the firm under Rule 2 of the Indian Income Tax Rules, 1922. This application was refused by the Income Tax Officer. Then there was an appeal and ultimately this reference was asked for by the assessees u/s 66 of the Act for the opinion of this Court on the question whether the application made for registering the firm was in time at the data on which it was presented.

The expression "registered firm" is defined by Section 2(14) the Act in these terms:

''Registered firm'' means a firm constituted under an instrument of partnership specifying the individual shares of the partners of which the prescribed particulars have been registered with the Income Tax Officer in the prescribed manner.

This manner has been prescribed by the proper authority under powers conferred upon that authority u/s 59 of the Act. These rules are to be found in the Bombay Government Gazette 1922, Part I, at page 1496. Rule 2 of these rules is in these terms:

Any firm constituted under an instrument of partnership specifying the individual shares of the partners may, for the purposes of Clause (14) of Section 2 of the Indian Income Tax Act, 1922 (hereinafter in these rules referred to as the Act), register with the Income Tax Officer the particulars contained in the said instrument on application on this behalf made by the partners or by any of them on or before the date on which a return is due under Sub-section (2) of Section 22 of the Act.

It is clear on the facts stated in the reference that this application was not made on or before the date on which the return was due under Sub-section (2) of Section 22 but long after that date. The matter appears to be so clear that it is difficult to understand why a reference was sought in this case. It is urged on behalf of the firm that the application must be deemed to have been made on or before the due date if it is made in fact before the assessment is made: or in other words if the return is accepted under Sub-section (3) of Section 22, though made after the due date u/s 22(2), the application for registering the firm can also be made before the assessment is made. It is difficult to justify this contention by any possible rule of construction which can be applied, and we are clear that the application was not made in the prescribed manner that is in accordance with Rule 2 of the rules framed with reference to the manner in which the application for registering a firm is to be made under the Indian Income Tax Act. It is hardly necessary to refer to any authority. But it seems that this point was raised in In the matter of Lalla Mal-Hardeo Das, Cotton Spinning Mills 75 Ind. Cas. 339 : 46 A. 1 : 21 A.L.J. 703 : A.I.R (1924) . (A.) 137 and without any difficulty in that case the learned Judges came to the conclusion which we have expressed here.

Costs of this reference to be paid by the assessees on the original side scale.