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Commissioner of Income-Tax, AP Versus Jayalakshmi Rice And Oil Mills Contractor Co.

1971 (1) TMI 5 - SUPREME Court

Registration of a firm under the Partnership Act takes place only when the necessary entry was made in the register of firm under s. 59 of Partnership Act - If the firm was registered under the Partnership Act after the application under the Income-tax Act was made, the application for registration under s. 26A of Income-tax Act will be treated filed out of time - Revenue's appeal allowed - Dated:- 15-1-1971 - Judge(s) : A. N. GROVER., J. C. SHAH. and K. S. HEGDE. JUDGMENT The judgment of the co .....

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ence 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 f .....

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the High Court answered the question referred in favour of the assessee on the ground that the application had been filed in time. Section 26A of the Act provides that an 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 the Act. The application has to be made by such person or persons and at such time and has to contain such particulars, etc. .....

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ime under the Act, (i) within a period of six months of the 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 t .....

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nted to the Registrar. In other Words the firm should be considered to have been registered on October 20, 1955, on which date the statement under section 58 of the Partnership Act was filed by the assessee before the Registrar of Firms. The real question which has to be determined is whether the registration of a firm under the Partnership Act takes place with effect from the date on which the application for the registration is made in accordance with section 58 of that Act. Section 58(1) prov .....

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tatement. In Ram Prasad v. Kamta Prasad, it was laid down that the registration of a firm under the Partnership Act takes place only when the necessary entry is made in the register of firms. Even under section 69 of the Partnership Act, which deals with the effect of non-registration, 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 .....

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if entry is made under section 59 pursuant to it the registration would be effective from the date when the application was presented. But section 58(1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely, section 59 and section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm c .....

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