TaxTMI 
TaxTMI 
1953 (12) TMI 35
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....xecuted by the two partners, Rattan Chand and Padam Parshad, and specifying their shares in the partnership on the 10th of April, 1950. This application was dismissed by the Income-tax Officer on the 26th of May, 1950, and an appeal against his order was dismissed by the Appellate Assistant Commissioner who apparently had before him two appeals relating to both the assessment years 1948-49 and 1949-50. The ground of dismissal was that the profits had not been distributed between the partners. A further appeal was made to the Appellate Tribunal which apparently only related to the year 1948-49. This appeal was also dismissed, but on a different ground, namely that according to the deed itself the partnership business had been carried on since the 1st of April, 1947, and therefore the partnership could not be deemed to be coed under an instrument dated the 10th of April, 1950, within the meaning of Section 26A. It was also held that such an instrument could certainly not apply to the account year ending March 1948. The assessee firm thereupon moved the Appellate Tribunal under Section 66(1) with the result that the question set out above has been framed for our decision. The learne....
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....s. Ram Gulam Madan Lal v. Income-tax Officer, G-Ward, Delhi, which has been n full as part of this case that the words "constituted under an instrument" mean "created or formed by a formal deed," but whether the fact that the partners of a firm who jointly executed such a deed choose to allege therein that they have previously been partners for some time on the same terms as those embodied in the deed debars the firm from registration under Section 26A is another matter. Obviously, as we held in the case referred to above, the deed or instrument cannot possibly have retrospective effect as regards the income-tax assessment of the firm, but I cannot see any objection to the firms being treated as constituted under the instrument as from the date of the instrument itself. It may be that the partners in these firms act foolishly in alleging the previous existence of the partnership on the same terms in the vain hope of securing retrospective concessions, and in the most literal sense of the words a partnership cannot be said to be constituted under an instrument when admittedly it has been in existence previously. On the other hand the intention of the law is clear....
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....he partnership was not to be dissolved till the (abkari) contract was over. This instrument was filed with an application for registration of the firm under Section 26A, on 15th November, 1948, and was dismissed on the same day. 2. The ground on which the dismissal order by the Appellate Assistant Commissioner is based cannot bear a moment's scrutiny. It is that the partners have not divided the profits (or loss) on the basis of account books which conformed to any recognized method of book keeping. This is introducing a new requirement not found in the section or the prescribed rules. It is not even necessary according to the rules to state the amount of profits which each partner got in division. If the Income-tax authorities were not satisfied about the correctness of the division, they could go behind it. But so long as the bona fides of the alleged division is not open to doubt, it is no reason to refuse registration of the firm that the details of the division do not meet with the approval of the Income-tax authorities. 3. But there is another ground on which, it appears to me, this firm was not entitled to registration under Section 26A. This appeal was heard in part o....
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....t somewhat greater length than I would have otherwise considered necessary. 6. The word "constitute" means, in the context, "set up," "establish" or "found" (Webster's Dictionary and Oxford Dictionary). The word means that the firm comes into being on the making of the instrument of partnership. There will be no difficulty whatsoever in understanding the expression "constitute", if a firm like a limited company, for example, cannot be validly formed except by an instrument in writing. But as a firm can come into being whether by agreement by word of mouth or sometimes even by agreement implied from conduct of the partners, or also by a written instrument, full e must be given to the words "constituted under an instrument of partnership" which occur in Section 26A. While a firm may be constituted in more than one legal manner, only a firm constituted in that one of the permissible modes which is specified in Section 26A is entitled to be registered for the purposes of the Income-tax Act. One and the same firm cannot be born or come into being more than once. If the firm was constituted by a verbal agreement early in 19....
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....e argument that "constituted by law" meant the same thing as "constituted according to law" was repelled. The case here is much simpler and clearer. A firm to be entitled to registration under Section 26A might be constituted by agreement between the parties, but the agreement must be one in writing. 8. It is true that the words used in Section 26A are "constituted under" and not "constituted by". But that hardly improves the appellant's position. The precise point of the distinction between "by" and "under" in such a context had to be considered in In re Smith [1896] 2 Ch. 590 and it was held a power in a trustee to invest funds in a company incorporated by Act of Parliament did not authorise an investment in a company incorporated by registration under the Companies Act (which, of course, was an Act of Parliament). This merely shows that when the word under is used, the ultimate source of validity for the constitution of the company must be an Act or something else preexisting, in conformity with which steps are taken to constitute the company. But in the case of a firm, the constitution of which may be by mere agreemen....
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.... year the registration was sought. It was pointed out that the partners of the dissolved firm had the right to apply for registration even after the dissolution of the firm. I entertain no doubt about the correctness of this decision. Mr. Deva Singh, the learned counsel for the appellant, draws our attention to rulings which assume or decide that the instrument of partnership to be filed with the application for registration should be the one in force on the date of the application, the point being of importance where a firm dissolved or reconstituted before such date. In Krishna Aiyar & Sons v. Commissioner of Income-tax, Madras [1929] 52 Mad. 367, a firm constituted under a deed of partnership dated 31st August, 1923, for a term of three years continued to carry on business after 31st August, 1926, without a fresh deed. Its application dated 26th July, 1927, for registration was refused, on the ground that at the time of the application there was no operative document to be registered. I shall have to refer again to the origin of the notion of registering a document instead of a firm, but it is enough to observe here that there was no provision in the Rules force in 1927-28 for ....
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....Act of 1922 as originally enacted nowhere referred to registering a firm. As soon as the particulars of the instrument of partnership were registered the firm answered to the description "a registered firm." In the rules framed in 1922 by the Board of Inland Revenue under Section 59(2)(e), rule 2 referred to a firm registering with the Income-tax Officer the particulars contained in the instrument of partnership. This was in strict accordance with the terms of Section 2(14) as it then stood. Bat the certificate contained in rule 4 was to be endorsed on the instrument and was to be to the effect: "This instrument.….has this day been registered with me." This was manifestly wrong. This certificate should have been, "the prescribed particulars of this instrument………have this day been registered with me." Perhaps no great harm was done, so long as it was clearly understood that the effect of the certificate was to make the firm a registered firm ' within the meaning of Section 2(14); especially as there was no provision then to register a dissolved firm though it did business in a part of the accounting year. But with the ext....
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....e in 2 to the instrument having been registered repeats the error in rule 4. Similarly, the reference in the certificate in rule 6A to the registration of the firm (not merely the instrument) is in conformity with the present state of the law. I do not overlook that the wrong phraseology used in the old rules has also crept in in the amended Section 28(2), which contains the words " as shown in the instrument of partnership registered under this Act governing such distribution " (of profits). This must read, consistently with the other provisions of the amended Act above referred to, with the words "on the basis of which the firm was" inserted after the words "the instrument of partnership." But even Section 28(2) mentions the instrument of partnership as governing the distribution of the profits. Therefore, obviously, it must be an instrument which was in existence and operative in the year of account in which the profits were earned and not merely an instrument brought into existence for the first time after the year of account, and in the assessment year. The sooner the rules are amended to bring them into conformity with the amended Act, so as to o....
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....was a completed cause of action on the oral loan, and the note was taken later merely as a security. Even if it had been the intention of the partners from the inception to execute an instrument of partnership and they had carried on business as partners before completing that formality, the firm would be constituted only when the instrument of partnership actually came into existence and not earlier. This is well brought out by the Judgment of Rowlatt, J., in Waddington v. O' Callaghan (H. M. Inspector of Taxes) [1931] 16 Tax Cas. 187. His Lordship observed :- "When people enter into a deed of partnership and say that they are to be partners as from some date which is prior to the date of the deed, that does not have the effect that they were partners from the beginning of the deed. You cannot alter the past in that way. What it means is that they begin to be partners at the date of the deed, but then they are to take the accounts back to the date that they mention as from which the deed provides that they shall be partners." His Lordship recognizes that it is quite possible that before the deed was executed the partners may in point of fact have been carrying on ....