TMI Blog1982 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, the second agreement dated December 1, 1972, filed as late as on July 25, 1974, could be read as part of the instrument of partnership filed on March 27, 1973 ? 2. Whether the application in Form No. 11 accompanied by a partnership deed which did not contemplate any stipulation to the effect that the guardian of the minors had agreed to their admission in the partnership can be called only a defective application and the defects for which could be remedied later on ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was in law justified in holding that the assessee-firm was constituted by a valid partnership deed and that it was entitled to the benefits of registration ? " The facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kumar [1974] 97 ITR 730, took the view that there was no valid deed of partnership on the basis of which the assessee could be granted registration. He did not consider the agreement executed on December 1, 1972, as a part of the partnership deed and thus in his opinion the guardian of the minors had not expressed his consent to their admission to the benefits of the partnership. He was also of the opinion that in case these two documents formed part of the same transaction even then registration could not be granted because the application for registration was defective and incomplete and he had no power to condone the delay. In the result the assessee's application for the grant of a fresh registration was rejected. Aggrieved, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant accounting period as required by law. The partnership deed dated December 1, 1972, in original was annexed to that application. The agreement which had also been executed on the same date was filed subsequently. It has been held that this agreement formed a part of the partnership deed itself. It satisfied the requirements which had been laid down by this court in the case of Uttam Kumar Promod Kumar [1974] 97 ITR 730. In other words, the Tribunal has found that the partnership was evidenced by a valid instrument of partnership and the consent of the guardian had been duly given for the admission of his minor sons to the benefits of the partnership. It is a pure finding of fact that the agreement formed part of the partnership deed whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [1977] 106 ITR 132 (Pat), one of the reasons given by the ITO for rejecting an application for registration was that a certified copy of the instrument of partnership had not been filed along with the application for registration. Section 185(2) of the Act provides that if the application for registration is defective, the ITO shall intimate the defect to the firm and give it an opportunity to rectify the defect. Repelling the contention of the Revenue that this opportunity was meant to remove a defect in the application itself and that only a defect of clerical nature, as without substance, it was held that the enabling provision for allowing an opportunity to the assessee for rectifying the defect and making the application in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in this section includes the documents which are required to be enclosed therewith and the partnership deed which shall accompany the application for registration is a part of the application. Therefore, it is mandatory on the part of the ITO to intimate the firm to rectify the defect in the application for the grant of registration and an opportunity should be given to the firm to rectify such defect within one month from the date of such intimation. In the instant case, the ITO did not give any such notice to the assessee to rectify the defect in the application for grant of registration. Thus, no opportunity was given to the assessee to rectify the defect. However, before the ITO could pass any order on the application for grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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