Mal Lodha, J. - (1.)THE Income-tax Appellate Tribunal, Jaipur Bench (hereinafter referred to as "the Tribunal"), has referred the following questions of law which arise out of its order dated April 22, 1974, for our decision :
"1. Whether, on the facts and in the circumstances of the case, and on a correct interpretation of the partnership deed the Tribunal was justified in holding that the partnership existed orally all along with effect from April 1, 1967, and that the partnership had not come into existence only from January 27, 1968, onwards?

(2.)IF the answer to the above question be in the negative, was the Tribunal justified in holding that the firm was entitled to registration under the Income-tax Act, 1961, for the assessment year 1968-69 ?"
2. Shri Rahmat Khan is a partner in M/s. New Friends & Co., Dhamani Market, Jaipur. He had 121/2% share in the profit and loss of that firm, for the accounting period corresponding to the assessment year 1968-69 which began on April 1, 1967, and ended on March 31, 1968. Shri Rahmat Khan entered into an agreement of partnership with one Shri Faizu Khan S/o. Molabux in respect of his share of 121/2% in M/s New Friends & Co. The formal partnership deed was drawn on January 27, 1968, between Shri Rahmat Khan and Shri Faizu Khan. The preamble to the partnership deed dated January 27, 1968, amongst others, contains the following recitals I

"......... and whereas the parties hereto have on and from April 1, 1967, agreed to be partners in the profit and loss of 121/2% in the name of the party hereto of the first part in the firm of M/s. New Friends & Co., Jaipur, and whereas to avoid future differences the parties have agreed to execute a deed of partnership."

It will also be useful to refer to Clauses 3, 4 and 6 of the partnership deed which are as under :

"3. The partnership business shall be for a period for which the party hereto of the first part may desire and he will be at liberty to keep the party hereto of the second part as partner or to refuse to keep him as partner. The party hereto of the second part shall have no claim whatsoever in this respect.

The party hereto of the second part has given Rs. 10,000 to the party hereto of the first part who has to invest the money in the firm of M/s. New Friends & Co. Party hereto of the second part shall not be entitled to any interest on this sum of Rs. 10,000. The amount shall be returned only when the full amount standing to the credit of the party hereto of the first part is received by him from the firm of M/s. New Friends & Co."

"6. The party hereto of the second part shall be actively engaged in the conduct of business of M/s. New Friends & Co., on behalf of the party hereto of the first part."

4. Shri Faizu Khan advanced Rs. 10,000 to Shri Rahmat Khan for investing the aforesaid amount in M/s. New Friends & Co. The profits received from M/s. New Friends & Co. by Shri Rahmat Khan was divided in accordance with the shares specified in the partnership deed between Shri Rahmat Khan and Shri Faizu Khan. The amount which was given to Shri Faizu Khan in accordance with the terms of the partnership deed was received by him. It was not appropriated by him for his own use. It may also be stated that there is no dispute that Shri Faizu Khan and Shri Rahmat Khan are not related in any manner. M/s. Rahmat Khan Faizu Khan, Bikaner (assessee-respondent), submitted an application for registration of the firm for the purpose of the I.T. Act, 1961 (Act No. XLIII of 1961) (for short "the Act" hereinafter), to the ITO concerned for registration of the firm and claimed registration under Section 185 of the Act on the basis of the partnership deed dated January 27, 1968. The ITO by his order dated February 25, 1972, declined to register the firm for the assessment year 1968-69, holding that the firm is not genuine as per reasons given in the assessment order for the assessment year 1968-69. The order of refusal to register the firm passed under Section 185(1)(b) of the Act was assailed by filing an appeal. The AAC of Income-tax, Bikaner Range, Bikaner, by his order dated September 30, 1972, confirmed the order of the ITO, refusing to register the firm. A further appeal was taken to the Tribunal. The only point before the Tribunal was whether the ITO and the AAC were justified in refusing the registration to the firm M/s. Rahmat Khan, Faizu Khan Bikaner, regarding the assessment year 1968-69, The Tribunal by its order dated April 22, 1974, reversed the orders refusing to register the firm and directed that registration should be granted to the firm as per its request as it is a genuine firm as per the material on record.

An application under Section 256(1) of the Act was filed by the Commissioner of Income-tax to refer the questions stated in the application for the opinion of this court in respect of assessment year 1968-69. The Tribunal, however, has referred the two questions stated hereinabove for our decision.

Section 4 of the Indian Partnership Act, 1932 (Act No. IX of 1932) (for the sake of brevity it will be referred to as "the Partnership Act") defines "partnership", "partner" and "firm" as under :

"4. Definition of 'partnership', 'partner', 'firm' and 'firm-name'.--'Partnership' is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Persons who have entered into partnership with one another are called individually 'partners' and collectively 'a firm', and the name under which their business is carried on is called the 'firm-name'."

(3.)SECTION 6 of the Partnership Act lays down tests for determining the existence of partnership. The material portion of SECTION 6 for our purpose is as follows :
"6. Mode of determining existence o] partnership.--In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together."

Sections 26A and 23(4} of the Indian I.T. Act, 1922, were deleted and in their place Sections 184 and 186 have been incorporated in the new Act. Section 26A of the Indian I.T. Act, 1922, was examined in CIT v. Sivakasi Match Exporting, Co. [1964] 53 ITR 204 (SC). Subba Rao J., as he then was, with whom Sikri J. concurred, observed as under (p. 208).

"A cnnbined effect of Section 26A of the Act and the rules made thereunder is that if the application made by a firm gives the necessary particulars prescribed by the rules, the Income-tax Officer cannot reject it, if there is a firm in existence as shown in the instrument of partnership. A firm may be said to be not in existence if it is a bogus or not a genuine one, or if in law the constitution of the partnership is void. The jurisdiction of the Income-tax Officer is, therefore, confined to the ascertainment of two facts, namely, (i) whether the application for registration is in conformity with the rules made under the Act, and (ii) whether the firm shown in the document presented for registration is a bogus one or has no legal existence. Further, the discretion conferred on him under Section 26A is a judicial one and he cannot refuse to register a firm on mere speculation, but he shall base his conclusion on relevant evidence."

Section 26A of the Indian I.T. Act, 1922, and Section 4 of the Partnership Act were again examined in Agarwal & Co. v. CIT [1970] 77 ITR 10 (SC). After reiterating the conditions essential for the registration of a firm as laid down in Sivakasi Match Exporting Co.'s case [1964] 53 ITR 204 (SC), their Lordships held that if the conditions essential for registration of a firm are fulfilled, the ITO is bound to register the firm unless the assessee has contravened Section 23(4) of the Indian I.T. Act, 1922.