JUDGMENT
1. The petitioner in this application under Article 226 of the Constitution of India has prayed for issuance of an appropriate writ quashing the orders as incorporated in annexures ‘2’ and ‘5’ to the petition. The order as contained in annexure ‘2’ is that dated the 27th February, 1970, passed by the ITO, Ward-C, Muzaffarpur (respondent No. 2), rejecting the application for registration filed by the petitioner under Section 185 of the I.T. Act, 1961 (hereinafter referred to as “the Act”), and that contained in annexure ‘5’ is dated the 23rd July, 1970, passed by the CIT (respondent No. 1) upholding the order of respondent No. 2 in revision filed by the petitioner under Section 264 of the Act.
2. The short facts relevant for disposal of this application may be summed up thus : The petitioner claims to be a partnership firm carrying on business in cloth. It claimed that the partnership was constituted on the 1st January, 1968, on which date a draft of the partnership deed was duly drawn up on a plain paper. Later on when the necessary stamp paper was purchased on the 19th January, 1968, the same draft was typed thereon and without apprehending any irregularity and through inadvertence under a bona fide belief the partners signed the deed under the same date as was typed out in the draft because, it is said, they had formed the partnership on January 1, 1968 itself. A copy of the partnership deed has been marked as annexure ‘1’. Later on this mistake was detected by the partners and a fresh deed was also drawn up on the 24th January, 1968, on new stamp papers purchased on the 23rd January, 1968. For the assessment year 1969-70 an application for registration under Section 185 of the Act was filed by the petitioner before respondent No. 2, admittedly on the close of the corresponding accounting year. The ITO held that since the accounting year of the assessee ended on the 20th October, 1968, the application was within the time prescribed by the Act and the Rules. He, however, held on scrutiny of the original partnership deed, that though the stamp paper was purchased on the 19th January, 1968, it was purported to have been executed on January 1, 1968, which was quite impossible and since the registration under the Act was a special privilege which was granted to an assessee, the petitioner was not entitled to such privilege on account of the wrong date of execution given in the deed which went to show that the assessee had wanted to play fraud with the department. A copy of the aforesaid order has been marked annexure 2. The petitioner thereafter filed an application under Section 264 of the Act before the Commissioner (respondent No. 1); a copy of the application in revision has been marked annexure ‘4’. By his revisional order as contained in annexure 5 the Commissioner agreed with the view of the ITO and relying upon a Bench decision of the Kerala High Court in Malankara Timbers v. CIT [1967] 66 ITR 200, rejected the petitioner’s revision application. The petitioner thereafter filed a writ application in this court which was registered as C.W.J.C. No. 1709 of 1970 and when this application came up for admission before a Bench of this court it was observed that since the petitioner had not exhausted the internal remedy by way of appeal and further second appeal, the application was not maintainable. The counsel for the petitioner appearing in that case then sought permission to withdraw the application for exhausting such remedies as may be available to the petitioner under the Act. The permission to withdraw was granted, a copy of this court’s order has been marked annexure ‘6’. The” petitioner thereafter preferred an appeal to the AAC with a prayer for condonation of delay. This application was filed on affidavit and the reason for withdrawal, as given above, has been asserted therein on affidavit”; a copy of that petition has been marked annexure ‘7’. By an order dated the 16th November, 1971, however, the AAC returned the memorandum of appeal to the petitioner on the ground that by filing revisional application under Section 264 of the Act, the petitioner had waived its right of appeal. This is borne out by the order dated the 16th November, 1971, as incorporated in annexure ‘8’. The petitioner in order to exhaust all the appellate remedies under the Act, pursued the matter in second appeal before the Income-tax Appellate Tribunal, but the Tribunal dismissed the appeal on the ground that the AAC had rightly held that the petitioner had waived its right of appeal in filing its application in revision before the Commissioner under Section 264 of the Act; a copy of the order of the Tribunal has been marked annexure ‘9’. After having so exhausted all such remedies as were available to the petitioner under the Act, the petitioner moved this application which was duly admitted. The sole question for determination in this case is as to whether the order of refusal to register under the provisions of Section 185 or for that matter Sections 184 and 185 read with the relevant rules and the forms prescribed thereunder, can be said to be justified in law or not. To this aspect of the case on merits, we shall advert later.
3. At the initial stage of hearing of this application, Mr. B.P. Rajgarhia, learned senior standing counsel for the revenue, took a preliminary objection to the maintainability of this application. He argued that this application ought to be held as barred on the principle of res, judicata since an earlier application for the same relief had been withdrawn. We do not think there is any force in this objection. The petitioner has stated on affidavit in this petition which is supported by the application filed by it before the AAC again with an affidavit with a prayer for condonation of delay, as borne out by annexure ‘7’. The circumstances under which the earlier application was withdrawn have been clearly stated therein which are to the same effect as aforementioned. There is no rejoinder to such an assertion of fact although a counter-affidavit has been filed in this case on behalf of the respondents. There is no reason not to accept the statement made in the petition as also supported by annexure ‘7’. Even apart from that the permission simpliciter to withdraw the earlier application cannot in any way be held to have decided anything on merits so as to attract the principle of res judicata. This then brings us to the question relating to the merits of the application.
4. From the partnership deed (annexure ‘1’) as also the two impugned orders (annexures ‘2’ and ‘5’) the following facts emerge. The stamp paper on which the deed in question was executed was purchased on the 19th January, 1968. The recitals in the deed show that there was a previous partnership consisting of some other members which was dissolved on the 31st December, 1967, and with effect from 1st January, 19687-1 new partnership was entered into although the stamp papers were purchased on the 19th January, 1968. The deed shows ex facie that it was purported to
have been executed on the 1st January, 1968. There cannot be any two
opinions regarding the obvious mistake in putting the 1st January, 1968, as
the date of execution of the document. Be that as it may, it is not quite
clear as to on which particular date this document was actually executed
because the first sentence of the document (annexure ‘1’) recites : “This
partnership made this 1st day of January, 1968, between…” Whereas the
last portion states “In witness whereof the parties hereto of the 1st, 2nd
and 3rd parts do hereby unto set their hands in presence of witnesses on
the day, month and year first above written.” This goes to show that the
very mistake which was committed in the first sentence of the document
has been reiterated in the last portion thereof. One thing, however, is
clear. The partnership deed was actually filed before the registering
authority, namely, the ITO, before the close of the accounting year, which
is the prime requisite under the law. Mr. K.N. Jain, learned counsel for
the petitioner, has urged that taking the worst view of the matter all that
can be said is that although the document is purported to have been executed on the 1st January, 1968, in fact it must be held to have been executed if not on the 19th January, 1968, when the stamp papers were
purchased, at least before the 7th October, 1968, when the application in
Form 11-A of the I.T. Rules, 1962, was filed by the petitioner. It was,
therefore, argued that once it be held that the application was presented
before the end of the relevant accounting year and the deed in question
was executed some time in the course of the accounting year, and the deed
in fact having been held to be genuine, the registration thereof could not be
refused merely on the ground that there was some inadvertent mistake in
typing out the contents of the deed on the stamp paper from a draft pre
pared earlier without making any change therein. We do not propose to
detain ourselves on the question as to whether the explanation of the petitioner relating to the verbatim copying out from the draft is acceptable or
not although this is certainly plausible. Whatever may have been the
reason for the commission of the mistake the fact remains that the partnership deed in question was executed during the accounting year and the
application for registration was filed within the time prescribed by law.
The recital in the deed also goes to show that the previous partnership
having been dissolved on the 3ist December, 1967, the new partnership
was constituted with effect from the 1st January, 1968, The main question is as to whether the obvious mistake in the recital of the deed can
be held to be such a flaw in the document as to entitle the revenue
authorities to reject the application for registration.
5. It is well settled that the conditions essential for registration of a firm are that;
(i) There should be an application on behalf of the firm made to the ITO before the end of the accounting year and the application should comply with the requirements of Section 184 of the Act and Rules 22 to 24 of the I.T. Rules, 1962;
(ii) The firm should be evidenced by an instrument of partnership. The difference made in the Act from the position obtaining under the 1922 Act is that whereas in the earlier Act the partnership should have been evidenced under an instrument of partnership, under the present Act it should be evidenced by an instrument of partnership;
(iii) The instrument should specify the individual shares of partners ; and
(iv) The firm should be genuine and actually be constituted in accordance with the shares as specified in the deed and the partnership so constituted should not be against the provision of any law.
6. The first and the second conditions, specified above, have been duly fulfilled and so is the third requirement, since annexure ‘1’ does specify the shares of each individual partners. So far as the genuineness of the partnership is concerned, the ITO himself has assessed the partnership as also its partners treating the partnership as genuine, which is borne out from annexure ‘3’ to the petition which is an order of assessment for the year 1969-70. The only ground on which registration has been refused is that there is an obvious discrepancy, well nigh impossible to be reconciled, in the date on which the document is purported to have been executed and the date on which it was actually so done. We think the point involved in this case is clearly covered by a Bench decision of this court in Sri Ram Mills v. CIT [1974] 95 ITR 279 (Pat).
7. In Sri Ram Mills’ case the stamp for the partnership deed was purchased on November 17, 1959, whereas the recital in the deed of partnership showed that it was written on October 31, 1959, and this was one of the main reasons why the registration was refused by the ITO and the Tribunal although the AAC in the first appeal preferred before him had allowed registration. Untwalia C.J., speaking for the Bench, held in such circumstances thus (page 281):
“It is, therefore, obvious that there was a contradiction between the recital of the date of execution in the deed and its actual execution. The question for consideration was whether the deed could be held to be invalid only on that account, as has been held to be so by the Tribunal. It has missed a fundamental principle of interpretation of a document that the document has to be read as a whole, and if there is any conflict between one part of the document and the other, then effect has to be given to that part of the document which finds support from other facts and circumstances of the case. Hence, it is plain that the recital about the date of execution of the document on the 31st day of October, 1959, was incorrect. Stamps were purchased much later, and on those stamps the deed could not be executed on October 31, 1959.”
8. Relying upon a Bench decision of the Madras High Court in Imperial Automobiles v. CIT [1973] 87 ITR 695, it was held that the registration could not be refused merely because of the difference in the date of execution as recited and the date of actual execution. The order of the Tribunal accordingly was held to be illegal. Mr. B.P. Rajgarhia, learned standing counsel for the revenue, urged that the case of Sri Ram Mills [1974] 95 ITR 279 (Pat) is distinguishable inasmuch as in that case the actual execution of the deed was borne out by the date put under the signature of the partners which showed that the actual execution had taken place on the 18th March, 1960. It was urged that in the instant case even the signature that is appended to the partnership deed purports to bear the same date, namely, 1st January, 1968. In our view, this distinction on facts is of no consequence in so far as the legal position is concerned, because the document was obviously executed in the course of the accounting year in question and if that be so there is no warrant for the proposition that although the document was actually executed before the end of the accounting year and although the recital went to show that the partnership had actually come into existence with effect from the 1st January, 1968, the document should still be held to be invalid on any score under the provisions of Sections 184 and 185 of the Act. Learned standing counsel thereafter vehemently relied on the Bench decision of the Kerala High Court in the case of Malankara Timbers [1967] 66 ITR 200 (Ker), which is the sheet-anchor of the decision of the Commissioner (respondent No. 1). That case was also considered by this court in the case of Sri Ram Mills [1974] 95 ITR 279 (Pat) and, to say the least, a doubt was expressed with regard to the correctness of the ratio decidendi of the case. In Sri Ram Mills’ case [1974] 95 ITR 279 (Pat) even proceeding upon the assumption that the ratio of the decision of the Kerala High Court in Malankara Timbers [1967] 66 ITR 200 (Ker) was correct, it could not in any event affect the registration for the year 1962-63 in Sri Ram Mills’ case [1974] 95 ITR 279 (Pat). It will be worthwhile to mention the salient feature in Malankara Timbers’ case [1967] 66 ITR 200 (Ker). It appears from the facts of that case that the date of execution was March 1, 1959, stamp had been purchased on March 23, 1959, and application for registration had been made on April 29, 1959. The Kerala High Court proceeding upon the footing that the document may have been signed some time between 23rd March and the 29th April, 1959, held that the registration could not be allowed for the assessment year 1960-61, since it could not be conclusively said that the document was executed before the close of the accounting year on the 31st March, 1959. If that be the ratio of the case there is no difficulty since in the present
case, as shown above, the document was actually executed in the course of the,
relevant accounting year. If, on the contrary, it be held that a partnership,
to be entitled to registration at all, must be in existence during the whole
of the relevant accounting year, then, with great respect to the learned judges
of the Kerala High Court, it must be held that the law has not been correctly
laid down. All that the law requires is that, if the partnership deed is
executed before the close of the relevant accounting year, even recording
the verbal creation of the firm earlier in the year or before the commencement of the year, registration should be granted from the date of the
commencement of the firm or the year and not from the date of execution
of the deed. We must, however, hasten to add that in such a case, however, the deed itself must record the anterior date on which the partnership
was formed. Reading the document (annexure “I”) as a whole and in
view of our finding recorded above that the recitals do show, that the firm
was actually constituted and came into being with effect from 1st January,
1968, and the application for registration along with annexure “1” having
been filed before the end of the accounting year, that is the end of the
matter, once it has been held that the firm was genuine and not bogus.
9. For the reasons given above, this application must be allowed, the
impugned orders as incorporated in annexures “2” and “5” of the application are quashed and it is directed that the respondents do register the
petitioner’s firm in accordance with the provisions of Section 185 of the Act.
There will be no order as to costs.