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TMI Blog1942 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Shyam Kumari and from this union there were two sons, Basant Lal and Gobind Prasad. His business, consisted of Benares cloth, gold and silver thread and money-lending. The assessee Messrs. Mohan Lal and Shyam Lal were always assessed as an "association of individuals". An attempt was made in the year 1934-35 for the assessment being made as an unregistered firm, but the application was withdrawn and in that assessment year also Messrs. Mohan Lal and Sayam Lal were assessed as an "association of individuals". During the assessment year 1938-39 some time about September 1938 an application was made by Baij Nath Das on behalf of Messrs. Mohan Lal Shyam Lal under Section 26-A of the Act for registration for purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing question of law :- "Whether, in the circumstances of this case, the Income Tax Officer was correct in law in rejecting the application for the registration of the firm under Section 26-A of the Act? " We have already given the language of Section 26-A and said that there must be a firm constituted under an instrument of partnership before an application under Section 26-A can succeed. The terms "firm" and "partnership" as not defined in the Income Tax Act, but in Section 2 (6A) it is said "firm", "partner" and "partnership" have have the same meanings respectively as in the Indian Contract Act, 1872. Although Chapter XI of the Indian Contract Act of 1872 was repealed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted under an instrument of partnership. It is alleged that about that time there was a partnership between Baij Nath on the one hand and the sons of Shyam Lal on the other, but the share of Baij Nath was six annas in the rupee and the share of the four sons jointly was ten annas in the rupee. It has to be conceded that there is no formal of informal instrument of partnership, but it is contended that two documents, namely a will of Shyam Lal dated the 5th of November 1930 and a compromise dated the 4th of August 1934, taken separately or taken together, constitute and instrument of partnership. Shyma Lals father Mohan Lal had a sister and that sister had a son by the name of Baij Nath. This Baij Nath appears to have been brought up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to spell out partnership by means of exchange of letter, and the case of In re Ramlal Murlidhar (1931) I. L. R. 58 Cal. 1005 and Haridas Premji v. Commissioner of Income Tax, Bengal (1932) A. I. R. 1932 Cal. 409. are cited. We shall assume for the purpose of the present case that the general contentions advanced by Mr. Gopi Nath Kunzru are sound, but we have got to see how far they are applicable to the facts of the present case. It man be-we are not deciding this point-that the will of Shyam Lal constitutes an instrument of partnership between Shyam Lal and Baij Nath Das, but, as we have indicated before, it is not clear if the business was an ancestral business. One thing, however, it is absolutely clear, that at the time when the will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, none of the minors had attained majority. From the terms of the compromise it appears that Shiam Kumari was the guardian for the purpose of that guardianship case of her two minor son Basant Lal and Govind Prasad, and Baij Nath was the guardian of the other two sons of Shiam Lal, namely Kanhaiya Lal and Kishan Das. Some sort of arrangement about the conduct of the business was agreed upon and effect was given to it by the Judge. It is said that this compromise amount to an instrument of partnership. As we have said before, on of the essential elements of partnership is the agreement between the persons concerned. We have to find out if there was any agreement between the persons concerned. Four of the persons concerned were minors and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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