- (1.) In this case the assessee is a partnership firm consisting of two partners, Bhuramal Tewari and Paluram Agarwal, having equal shares. The partnership was registered under Section 26A of the Income-tax Act for the assessment years 1945-46, 1946-47 and 1947-48. For the assessment year 1948-49, the partnership firm filed an application for renewal of the registration. The application was made on 8-9-1948. Together with the application the assessee. produced a partnership deed dated 29-7-1944. The application was signed . by one of the partners Paluram. The other partner Bhuramal did not sign the application personally but one Surajmal signed on his behalf. On 31-7-1949, a second application was filed on behalf of the assessee firm, The application was accom-pained by another partnership deed dated 29-6-1949. This time the application was signed by Paluram and also by one Jutaram who held a power of attorney from Bhuramal. The application was rejected by the Income-tax Officer who refused registration on three grounds, one of which was that Bhuramal did not personally sign the application. An appeal was taken on behalf of the assessee to the Appellate Assistant Commissioner. The appeal was allowed by the Appellate Assistant Commissioner and the Income-tax Officer was directed to register the firm. The Department preferred an appeal to the Appellate Tribunal who allowed the appeal taking the view that the assessee firm was not entitled to registration under Section 26A as Bhuramal did not sign personally the application form.
(2.) In this state of facts the Appellate Tribunal has submitted the following questions of law for the opinion of the High Court; "(1) Whether Rule 6, Income-tax Rules, 1922, which requires that an application for renewal of re- gistration should be signed personally by the partners is 'ultra vires ?' and (2) Whether the word 'personally' in Rule 6, Income-tax Rules would exclude the duly authorised agent of a partner , from signing the application for renewal of registration under Section 26A of the Act, read with Rule 6, Income-tax Rules on behalf of a partner?"
(3.) As regards the first question Mr. Dutt on behalf of the assessee put forward the "argument that Rules 2 and 6, Income-tax Rules were repugnant to the Powers-of-Attorney Act and, therefore, these rules were in excess of the statutory power conferred on the Central Board of Revenue and should be held to be "ultra vires'. Learned counsel pointed out that Section 26A of the Act does not itself provide that the application for registration of the partnership firm must be signed personally by each of the individual partners. Learned counsel referred to Section 26-A which is in the following terms: "(1) 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 this Act and of any other enactment for the time being in force relating to income-tax or super-tax, (2) The application shall be made by such person or persons and at such time and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed; and it shall be dealt with by the Income-tax Officer in such manner as may be prescribed." Counsel also referred to Rules. 2 and 6 framed by the rule-making authority under Section 59, Income-tax Act. Rule 2 states: "Any firm constituted under an instrument of Partnership specifying the individual shares of the partners may, under the provisions of Section 26A, Income-tax Act, 1922 (hereinafter in these rules referred to as the Act), register with the Income-tax Officer, the particulars contained in the said Instrument on application made in this behalf. Such application shall be signed by all the partners (not being minors) personally, or in the case of a dissolved firm by all persons (not being minors) who were partners in ' the firm immediately before dissolution and by the legal representatives of any such partner who is deceased and shall, for any year of assessment up to and including the assessment for the year ending on 31-3-1953, be made before 28-2-1953, and for any year of assessment subsequent thereto, be made....." Similarly, Rule 6 requires that an application for -renewal of the registration should be signed personally by all the partners. Rule 6 reads as follows: "Any firm to whom a certificate of registration has been granted under Rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year. Such application shall be signed personally by all the partners (not being minors) of the firm, or, where the application is made after dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before dissolution and by the legal representative of any such person who is deceased; and ac- companied by a certificate in the form set put below........." The argument of Mr. Dutt is that these rules are repugnant to Section 2 of the Powers-of-Attorney Act which states: "The donee of a power-of-attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument and thing so executed and done, shall be as .effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.....". In support of his argument Mr. Dutt referred to the principle that in making rules under the power conferred by a particular statute the rule-making authority must exercise the power not merely within the limits laid down by the statute but the rules framed must not ' entrench on other legislative enactments. Counsel referred in this connection to passage from Craies on Statute Law at page 299: "A by law to be valid, says Sir John Comyns (Digest, tit,. By law, B. 1), must, be 'legi fidei ration! consona'. This is in accordance with the proposition stated in 5 Co. Rep. 63 namely, that 'all by laws are allowed by the law which are made for the true and due execution of the laws or statutes of the realm, or for the well government and order of the body incorporate. And all by-laws which are contrary or repugnant to the laws or statutes of the realm are void and of no effect.' It is sometime expressly stated in a statute that a bylaw must riot be repugnant to the statute or the general law; but whether so stated or not a bylaw which in whole or in part is not confined to the particular circumstances contemplated by the statute or is repugnant to the general law is invalid. From this rule it follows, as was said by Lush J., in --'Hall v. Nixon', (1875) 10 QB 152 at p. 159 (A), 'obedience to a bylaw cannot be enforced by the imprisonment of the offender or by the forfeiture of his goods, because these are both against Manga Charta'.";