Malik, C.J. - (1.) THE Income-tax Officer refused an application under Section26A, Income-tax Act, for registration of a partnership firm. This order was upheld by the Appellate Tribunal and thereafter an application was made that a case be stated to this Court under Section66(1), Income-tax Act. THE Tribunal has thereupon referred to this Court the following two questions. 1. Whether the inclusion of Ghanshayam Das and Sunder Lal (two brothers constituting a Hindu undivided family) in the deed of partnership dated 7-3-1945, as partners of 3.1/5 as a co-parcenary unit, without specification of their shares inter se, rendered the partnership inoperative and illegal within the meaning of Section4, of Partnership Act. 2. Whether the application under Section26A. Income-tax Act, seeking registration of the Instrument of Partnership dated 7-3-1945, in which application the collective share of 3.1/5 annas of Ghanshyam Das and Sunder Lal had been shown against their names as a unit, which application was admitted before the Tribunal to have been signed by Ghanshyam Das only, was a proper and valid application within the meaning of Rule 2, Income-tax Act, on the basis of which registration could be allowed for purposes of Income-tax Act.
(2.) THE facts, as gathered from the statement of the case and from the appellate order of the Tribunal are that there was a joint Hindu family comprising the descendants of one Jotha Ram which was carrying on business andamp; was assessed to Income-tax as a Hindu undivided family. THEre was a partition in the family and, after the partition, a deed of partnership was executed in March 1945. In the deed of partnership it was mentioned that Ghanshyam Das Sunder Lal constituting a Hindu undivided family were joining this partnership through L. Ghanshyam Das and L. Sunder Lal, both being sons of L. Bilas Rai. THE share of the joint family represented by Ghanshyam Das Sunder Lal was 3.1/5 annas while the shares of the other four partners, Ram Kumar, Babu Lal Ram Niwas and Govind Prasad were also 3.1/5 annas each. In the assessment year 1944-45 an application for registration was made under Section26A, Income-tax Act, on behalf of (1) Ram Kumar, (2) Babu Lal, (3) Ram Niwas, (4) Ghanshyam Das Sunder Lal and (5) Govind Prasad. THE application, we are informed by learned counsel, was signed by Ram Kumar, Babu Lal, Ram Niwas, Govind Prasad and also by Ghanshyam Das and Sunder Lal. THEre was, however, some confusion whether both Ghanshyam Das and Sunder Lal had signed the application or only Ghanshyam Das had signed it But we shall come to that point later. Three points were raised before the Tribunal. Firstly, it was said that Ghanshyam Das Sunder Lal, a Hindu undivided family, could not as such be partners in this partnership firm. Secondly, it was said that there was no specification of shares as between Ghanshyam Das and Sunder Lal, if it was alleged that they were to be treated as partners in the partnership. Lastly, it was alleged that the application was defective inasmuch as Sunder Lal had not signed the original application under Section 26A. On all these points the Tribunal, in its appellate order, decided against the assessee. At the time when the Tribunal decided the appeal the original application for registration under Section26A was not before it, as it was with the Income-tax Officer at Gonda. It was assumed that the application was signed only by Ghanshyam Das and the case was argued on that hypothesis and the learned counsel had urged that the fact that Sunder Lal had not signed the application would make no difference.
(3.) AFTER the case was decided by the Tribunal the assessee discovered that the original application under Section26A had been signed by both Ghanshyam Das and Sunder Lal and an application was, therefore, made to the Tribunal bringing this fact to its notice. The Tribunal, however, rejected this application on the 24th of February 1948, and the statement of the case proceeds on the footing that the application was signed by only Ghanshyam Das. The Tribunal, when referring the case, directed that the original application under Section26A shall form part of the statement of the case and it is Annexure 'A' (Copy) of the application dated the 6th of March 1945 for the registration of the firm. From the copy annexed it appears that there were, as a matter of fact, six signatories to the application. Though the names of the first five signatories are not mentioned in the copy, it may safely be presumed that one of the signatures was of Sunder Lal as stated by Mr. Pathak. As the mistake was made by him by inadvertence by reason of the original application being not available, as it was in the Income-tax office at Gonda, we do not think the Tribunal should have refused to make the correction. In any case the application being a part of the statement of the case, we cannot ignore the fact that it bears six signatures and there are six executants to the document. Coming to the next point whether a Hindu undivided family as such could be a partner, learned counsel has urged that, whatever might have been the view of this Court prior to the year 1948, the decision of their Lordships of the Judicial Committee in --'Lachhman Das v. Commr. of Income-tax, Punjab', NWF and Delhi Provinces, Lahore' 1948-16 ITR 35 (P.C.) makes it now clear that that view should be re-considered. Reliance is also placed on a judgment of the Bombay High Court in --'Udhavji Anandji v. Bapudas Ramdas', AIR 1950 Bom 94.;