TMI Blog1930 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980. It is further stated that in February 1927 a partnership d9ed was drawn up and forwarded for registration, but registration was refused by the Income Tax officer as the deed was not executed by the capitalist partners and that in the assessee's appeal, with regard to the assessment, the Assistant-Commissioner of Income Tax confirmed the action of the Income Tax officer. On the petition to him of 20th April 1928 the Commissioner of Income Tax passed an order of 3rd September 1928. He gave the assessee some relief but did not set aside the order of the Income Tax officer refusing to register the partnership deed on the ground that it was signed by the working partners only. The Commissioner of Income Tax did not refer the seven que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax in respect of the refusal of the income tax officer to register the partnership deed there was no question of law arising out of the order of the Assistant Commissioner and that therefore the Commissioner of Income Tax under Section 66, Sub-section (2), could not state a case to the High Court. It seems to me however that the question whether the Assistant Commissioner could or could not set aside the order of the Income Tax officer, which question, it is understood, was considered and decided against the assessee, was a question of law arising out of the order of the Assistant Commissioner. That how-saver was not the question which the Commissioner of Income Tax was asked to refer to the High Court, the first que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refused to recognize them as a registered partnership firm and levied assessment on them on the basis of an unregistered firm. While dealing with the question whether the applicants should be recognized as a registered firm, the learned Commissioner has said: As regards registration, I think none can be allowed as no partnership deed duly executed by all the partners was put in. What has been put in is merely an agreement executed by the working partners in. favour of the capitalist partners and so signed by the former alone. 6. On the question of a reference being made to the Court, the learned Commissioner has said: As the law allows no appeal to the High Court on the question of registration of a firm, and as under Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It would therefore appear that the conclusion arrived at by the learned Commissioner on this point was not correct. 12. With regard to the second point again, it would appear that the learned Commissioner has taken too norrow a view of the provisions of Section 66, Clause (2) of the Act which, prior to its recent amendment by Act 21 of 1930, was as follows: 66. (2) Within one month of the passing of an order under Section 31 or Section 32, the assessee in respect of whom the order was passed may, by application accompanied by a fee of ₹ 100 or such lesser sum as may be prescribed, require the Commissioner to refer to the High Court any question of law arising out of such order, and the Commissioner shall, within one month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt true that, so far as the rate at which they were taxed for the purposes of Income Tax would be the same in either case but they stood to suffer considerably so-far as the supertax assessment was concerned which followed the event, and also so far as it affected the right of each individual partner of the firm to claim a refund of the assessment paid under Section 48 of the Act. 16. They persistently pressed this objection of theirs before the Income Tax. officer, the Assistant Commissioner, and the Income Tax Commissioner. The fact that the Income Tax officer has chosen to pass two separate orders on the same date, one determining the status of the applicants as an unregistered firm, and the other assessing them as such cannot d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of limitation was not seriously pressed. The application to the Income Tax Commissioner was admittedly made within 30 days of the date on which the Income-sax Commissioner communicated his order. The fact that he had written it previously and had kept it with himself could not possibly affect the applicants. 20. Although both parties have argued their case on the merits of this vital question, it is proper that we should not now finally decide it, but record a finding in terms of Section 66, Clause (3), requiring the Commissioner to state and refer the case to us on points 1 and 2 of the application made to him. 21. For these reasons I concur with the order proposed by the learned Judicial Commissioner. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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