1971 (1) TMI 5

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....the Act was filed out of time. The facts are not in dispute. The assessee-firm was constituted under a deed of partnership dated October 6, 1955. It was to come into existence with effect from November 5, 1954. The assessee filed an application under section 26A of the Act for registration of the firm for the assessment year 1956-57. The " previous year " of the firm was shown as the year ending October 26, 1955. This application was received by the Income-tax Officer on October 14, 1955. On October 20, 1955, the asseseee filed before the Registrar of Firms a statement under section 58 of the Indian Partnership Act, 1932. On November 2, 1955, the Registrar of Firms filed the statement of the assessee and made entries in the register of f....

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....constitution of the firm or before the end of the ' previous year ' of the firm, whichever is earlier, if the firm was constituted in that previous year ; (ii) before the end of the previous year in any other case ; (b) where the firm is registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is registered under the Indian Registration Act, 1908 (XVI of 1908), before the end of the previous year of the firm ........ " Now it is common ground that the application for the registration was not made within the period prescribed by rule 2(a). What has been urged throughout on behalf of the assessee is that the application to the Income-tax Officer was governed by rule 2(b) and was in time as the ....

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...., it has been consistently held that the registration of a firm subsequent to the filing of the suit did not cure the defect : See Danmal Purshotam Dass v. Babu Ram Chhote. Thus, under the partnership law it can be taken to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under section 59 of the Partnership Act by the Registrar. It is true that sub-section (1) of section 58 employs language which, without anything more, may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under section 59 p....