V.G. Oak, C.J. - (1.) MESSRS. Kanhaiya Lal Moti Lal, Banaras, was a Hindu undivided family. In connection with the assessment for 1946-47 it was claimed that there was a complete partition of the Hindu undivided family with effect from September 26, 1944. It was further claimed that the business was thereafter continued as partnership business by members of the erstwhile family. An application for registration of the firm was filed along with the deed of partnership dated September 26, 1944. The application for registration in the year 1946-47 remained pending for several years. The application was ultimately dismissed on March 15.19.51. In the meanwhile, the firm filed two applications for renewal of registration for the assessment years 1947-48 and 1948-49. The two applications for renewal of registration were filed on December 9, 1947, and July 12, 1948, respectively. Both the applications for renewal of registration were dismissed by the Income-tax Officer on various grounds. The decision of the Income-tax Officer was upheld in appeal by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. The Tribunal based its decision on the short ground that applications for renewal were not maintainable in view of the fact that the firm had never been registered. The assessee raised the contention that the Tribunal was not justified in dismissing the application for registration on the short ground that the firm had never been registered. As directed by this court, the Income-tax Appellate Tribunal, Allahabad, has referred the following question to this court: "Whether, on the facts and in the circumstances of the case, when no orders were passed on the application of the assessee filed under Section 26A of the Income-tax Act in the assessment year 1946-47, an application other than for renewal of registration could be filed in law and whether the Tribunal was justified in dismissing the appeal of the applicant on that ground ?"
(2.) FOR answering this question, it is necessary to peruse the relevant provisions in the statute and the rules. The present case is governed by the Indian Income-tax Act, 1922 (hereafter referred to as the Act). Section 26A of the Act laid down the procedure for registration of firms. Section 26A stated: "(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 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." It has to be noted that Section 26A refers to registration of firms. There is no separate mention of renewal of registration. Presumably, registration in the first instance and renewal of registration are both governed by Section 26A. Rules framed under the Act were amended in 1952. We are concerned with the rules before the amendment of 1952. Rule 2 dealt with applications for registration. Rule 3 laid down that the application referred to in Rule 2 shall be made in the form annexed to Rule 3. A form was prescribed in Rule 3. Rule 4 ran thus: "(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 .... a certificate .... and this certificate of registration shall have effect for the assessment for the year .... (2) If the Income-tax Officer is not so satisfied, he shall pass an order in writing refusing to recognise the instrument of partnership . . . ."
(3.) RULE 6 ran thus : "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 ....." Another form for application for renewal of registration was prescribed in Rule 6.;