B.J.DIVAN, P.N.BHAGWATI - (1.) The short question of law which arises in this Reference turns on the construction of an order passed by the Income-tax Officer. The assessee is a firm which was originally constituted under a deed of partnership dated 30th October 1957 and it appears that for the assessment years prior to the assessment year 1961-62 with which we are concerned in the present reference it was registered under sec. 26A of the Income-tax Act 1922 There was a change in the constitution of the assessee from the commencement of Samvat Year 2016 being the relevant previous year for the assessment year 1901-62 and a new partnership deed dated 5th March 1960 was executed between the partners. On 29th June 1961 a notice under sec. 2222) calling for return of income for the assessment year 1961-62 was served on the assessee but the assessee neither filed a return of its income nor applied for extension of time to file its return. The Income-tax Officer therefore proceeded to make a best judgment assessment on the assessee under sec. 23(4) and by an assessment order dated 23rd December 1961 he assessed the assessee on an estimated income of Rs. 45 0 The assessee thereafter made an application for cancellation of the best judgment assessment under sec. 27 but the application was rejected by the Income-tax Officer and on appeal the order rejecting the application was confirmed by the Appellate Commissioner and the Tribunal. The result was that the best judgment assessment made under sec. 23(4) remained undisturbed against the assessee. The assessee had also made two applications for registration under sec. 26A: one being an application for registration dated 26th May 1960 and the other being an application for renewal of registration dated 26th June 1961. Both the applications related to the same assessment year namely 1961 The Income-tax Officer by an order dated 23rd December 1961 rejected both the applications and as the entire controversy between the parties turns on the true construction of this order it is desirable to set the same in extenso The order was in the following terms:- Order under sec. 26A:- An application for renewal as well as an application for registration has been Sled on 26-6-61 and 26-5-60 respectively. As no return has been filed and no partners accounts have been furnished the correctness of the statements made in the application cannot be verified. Further the assessment is being completed under sec 23(4) and under the discretion vested in this section I refuse to renew registration and consider the very application for registration as improper as the facts stated therein cannot be verified. The assessee being aggrieved by the order preferred an appeal to the Appellate Assistant Commissioner but the Appellate Assistant Commissioner dismissed the appeal on the ground that the registration was refused by the Income-tax Officer in the exercise of his discretion under sec. 23(4) and there was no ground for interference with such discretion. The assessee thereupon carried the matter in further appeal to the Tribunal. The Tribunal took the view that though the order of the Income-tax Officer contained a reference to sec. 23(4) the discretion conferred under that section was not specifically exercised by the Income-tax Officer and that the order was therefore not an order under sec. 23(4) but was a order under sec. 26A and since the grounds on which the order was based were not grounds which could legitimately be taken into account in refusing registration under sec. 26A the order was bad and the assessee was entitled to registration under sec. 26A. The Commissioner thereupon applied for a reference but the application for reference was rejected by the Tribunal on the ground that no question of law arose out of the order of the Tribunal This led to the filing of an application by the Commissioner to this Court for reference and on the application of the Commissioners we directed the Tribunal to state a case and refer to this Court the following question of law which in our view arose out of the order of the Tribunal:- Whether on the facts and in the circumstances of the case the Tribunal was correct in holding that the Income-tax Officer had failed to exercise the discretion vested in him under sec. 23(4) before refusing registration and/or renewal of registration of the assessee firm and in granting registration to the assessee firm for the assessment year 1961 ? Hence the present reference to us at the instance of the Commissioner.
(2.) In order to arrive at a proper determination of the question it is necessary to notice the relevant provisions of the Act. There are two sections under which the Income-tax Officer has power to refuse registration of a firm: one is sec. 26A and the other is sec. 23(4). Sec. 26A provides: 26 (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 or 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 times 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. The manner of disposal of such an application is prescribed by Rules 2 to 6B of the Income-tax Rules and Rule 4 which is the material Rule says: 4 (1) If on receipt of the application referred to in Rule 3 the Income-tax Officer is satisfied that there is or was a firm in existence constituted as shown in the instrument of partnership and that the application has been properly made he shall enter in writing at the foot of the instrument or certified copy as the case may be. a certificate in the following form namely: xx xx xx xx xx xx xx (2) If the Income-tax Officer is not so satisfied. be shall pass an order in writing refusing to recognise the instrument of partnership or the certified copy thereof and furnish a copy of such order to the applicants. Sec. 23(4) deals with a case where an assessee fails to make the return required by any notice given under sec. 22(2) and had not made a return or a revised return under sec. 22(3) or fails to comply with all the terms of a notice issued under sec. 22(4) or having made a return fails to comply with all the terms of a notice issued under sec. 23(2)and provides that in such a case: ....the Income-tax Officer stall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and in the case of a firm may refuse to register it or may cancel its registration if it is already registered. These provisions show that a firm for the purpose of its assessment can apply for registration under sec. 26A if the Income-tax Officer is satisfied that the firm is in existence as shown in the instrument of partnership and the application has been properly made he is bound to register it. He ran refuse registration under sec. 26A only if he is not satisfied in regard to these matters. There is no other ground on which be can refuse registration under sec. 26A. But even where the conditions laid down in Rule 4 are complied with and the Income-tax Officer has no power to refuse registration under sec. 26A sec. 23(4) confers upon him an overriding power to refuse registration if the conditions set out in the section are satisfied. The use of the words may refuse..... or may cancel in contradiction to the words shall make the assessment in the preceding part of the section show that sec. 23(4) does not prescribe automatic refusal of registration in the event of the fulfilment of the conditions set out in the section but confers a discretionary power on the Income-tax Officer to refuse registration in such a Case. The Income-tax Officer can therefore in the exercise of his discretion under sec. 23(4) refuse registration in a case falling under that section even though the conditions laid down in Rule 4 are complied will and be could not have refused registration under sec. 26A. The Income-tax Officer has thus two powers to refuse registration of a firm: one under sec. 26A and the other under sec. 23(4). The two powers are distinct and independent: the scope of the two powers is different and different conditions govern the exercise of the two powers. But that does not mean that the Income-tax Officer cannot exercise both the powers simultaneously and make an order refusing registration under both the sections. The Income-tax Officer can refuse registration under sec. 26A or in the exercise of his discretion under sec. 23(4) or simultaneously under sec. 26A and in the exercise of his discretion under sec. 23(4). It is therefore necessary to determine whether the order in the present case refusing registration to the assessee was made under sec 26A or under sec. 23(4) or both under sec. 26A and sec. 23(4). If the order was made under sec. 26A and not under sec. 23(4) as held by the Tribunal it is obvious that the Tribunal was right in granting registration to the assessee since the grounds on which registration was refused by the Income-tax Officer could not be sustained under that section But such in our view is rot the position. The order of the Income-tax Officer refusing registration was an order both under Sec. 26A and sec. 23(4)
(3.) Turning to the order of the Income-tax Officer we find-and that was the circumstance strongly relied upon on behalf of the assessee that order is intituled Order under sec. 26A but no undue emphasis can be placed on the mere title of the order. The question as to the true nature of the order whether it was made under sec. 26A or under sec. 23(4) or under both. must be decided not by reading one or other part of the order in isolation but on a proper reading of the order as a whole in all its parts and in doing so two principles of importance must not be overlooked. The first is that a construction must be placed which gives meaning to every part of the order and does not render any part superfluous or meaningless and the second is that regard must be land to the substance of the order and not the form. If we read the order in this manner it is clear that the order is made by the Income-tax Officer not only under sec. 26A but also under sec. 23(4). The Income-tax Officer has not only referred to sec. 23(4) but in express terms he has stated that he is exercising the discretion vested in him under that section. The words ....... the assessment is being completed under sec. 23(4)and under the discretion vested in this section I refuse to renew registration leave no doubt that the Income-tax Officer was consciously exercising his power under sec. 23(4) when he refused the application for registration. The argument urged on behalf of the assessee was that the reference to sec. 23(4) was merely a casual reference and there was nothing to show that the discretion under that section was exercised by the Income-tax Officer. But this argument is plainly contrary to the clear and specific words used by the Income-tax Officer in the order and fails to give due effect to them. The argument in effect comes to this; that though the Income-tax Officer has in terms stated that he is refusing to renew registration in exercise of the discretion vested in him under sec. 23(4) still he must be held not to have exercised the discretion under that section. We cannot accept such an argument: the argument carries its own refutation. At is Undoubtedly true that before referring to sec. 23(4) the Income-tax Officer also pointed out the difficulty of verifying the correctness of the statements made in the application owing to the failure of the assessee to file a return and the partners accounts and this statement read with the title of the order might suggest that the Income-tax Officer was also acting under sec. 26A. But that does not exclude the conclusion which follows clearly from the succeeding words quoted above that the Income-tax Officer was also exercising his discretion under sec. 23(4) in making the order. The Order was an order under both sec. 26A and 23(4) and the Income-tax Officer simultaneously exercised his powers under both the sections in refusing registration to the assessee.;