TMI Blog1978 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to the assessment years 1968-69 and 1969-70. It was claimed in the course of proceedings for the assessment year 1967-68 that the assessee was a firm consisting of two partners, namely, Shri Shyamdhan Sett and Sm. Krishna Sett, which was entitled to registration. This was followed by a claim for continuation of registration for the assessment years 1968-69 and 1969-70. The Income-tax Officer did not allow registration for the assessment year 1967-68 on the ground that since Shyamdhan Sett got drowned while taking a bath in the river Hooghly on the 3rd October, 1967, and was not heard of since then, there was no genuine firm in existence. The Income-tax Officer refused the claim of registration for the assessment year 1967-68 and the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or about the 26th February, 1968, this court had appointed one Gopal Chandra Sett to be the administrator-pendente lite in respect of the estate of Shyamdhan Sett. The relevant portion of the order reads as follows: "It is ordered that without being required to furnish any security and without being allowed any remuneration the said applicant, Gopal Chandra Sett, be and he is hereby appointed the administrator-pendente lite (hereinafter referred to as the 'said administrator') of the estate and properties of the deceased above-named with power to him to get in and collect all moneys due and properties belonging to the estate of the deceased above named and to look after and/or manage the business and interest of the deceased above-named ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the oral evidence of the witness I am satisfied that it is a fit case where the death of the said Shyamdhan Sett should be presumed from the disappearance of the said Shyamdhan Sett on or after the 3rd day of October, 1967, under the circumstances stated hereinabove and as mentioned in the petition and in the affidavit on record....... It is ordered that the death of Shyamdhan Sett above-named be presumed from the disappearance of the said Shyamdhan Sett on or after the 3rd day of October, 1967, from the circumstances attending such disappearance as mentioned in the petition and in the affidavit filed herein and also as recorded in the evidence adduced by the witnesses called by the petitioner. Orders already made will continue. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication shall be made to the Income-tax Officer having jurisdiction to assess the firm, and shall be signed- (a) by all the partners (not being minors) personally ; or (b) in the case of a dissolved firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the legal representative of any such partner who is deceased. Explanation.-In the case of any partner who is absent from India or is a lunatic or an idiot, the application may be signed by any person duly authorised by him in this behalf, or, as the case may be, by a person entitled under law to represent him." Section 187 of the Act deals with the change in the constitution of a firm and sub-section (2) of section 187 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with the case where one of the partners had died and the change in the constitution of the firm was considered in that light and the observations in that decision were made in that background. The said decision went up in appeal and was confirmed and the decision of the Division Bench of this court is reported in [1977] 108 ITR 954 (Cal) (Sandersons Morgans v. Income-tax Officer). Our attention was also drawn to the observations of the Full Bench of the Andhra Pradesh High Court in the case of Addl. Commissioner of Income-tax v. Vinayaka Cinema [ 1977] 110 ITR 468 (AP) [FB], where the majority of the judges of the Full Bench held that the very basic concept underlying section 187(1) was that one and the same firm must be continuing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to represent the estate must be on the presumption that Shyamdhan Sett is dead. If that is the position then the firm was not entitled to continuation of registration. Furthermore, the application made in view of the rules prescribed was defective. The Supreme Court has held that such an application must strictly comply with the requirements of the law. Reliance in this connection may be placed on the observations of the Supreme Court in the case of Sri Ramamohan Motor Service v. Commissioner of Income-tax [1973] 89 ITR 274 (SC). For the reasons aforesaid, in either view of the matter, the Tribunal was right in holding that the assessee was not entitled to the continuation of the registration for the assessment years 1968-69 and 1969-70. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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