2001 PLP 3680 (PTD)

R. JAYASIMHA BABU, J.‑‑‑ The Revenue has caused this reference, which relates to the assessment years 1971‑72 to 1973‑

74. The questions referred to us are: "(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is correct in law in holding that the assessee‑firm is entitled to registration for the assessment year 1971‑72 and that no material or evidence was brought on record by the Department so as to deny the benefit of registration to the assessee? (2) Whether, the Appellate Tribunal's further finding that the question of genuineness of the firm,' the share of the partners and the distribution of profits can be gone into and examined only at the time of grant of registration for the first time and once registration has been granted, the renewal is automatic is correct in law? The assessee is a partnership firm, which was constituted under a deed of partnership dated April 1, 1969. It consists of four partners. The share of each of those partners in the profit and loss of the firm has been set out in the partnership deed. The firm was registered under section 184 of the Act and the registration continued up to the year 1970‑

71. The assessee applied in the prescribed form a declaration for continuance of the registration. The Assessing Officer refused the continuation on the ground that the assessee had, in a settlement proceeding, agreed to have the income of another firm, by name, Seth Kishanchand Ramchand, included in the total income of the assessee‑firm and taxed accordingly. The view of the Assessing Officer was affirmed by the appellate authority, but was reversed by the Tribunal. The Tribunal held that there was no independent material or evidence to show that the other firm had no independent existence. It found that the constitution of this firm had not been changed, and also that the profit‑sharing ratio had not been altered. The Tribunal further held that for continuation of registration, the Assessing Officer was not required to go in to the profit‑sharing ratio. Though the Tribunal was not right in observing that the registration if sought to be continued, it is not open to the Income‑tax Officer to apply his mind to the profit‑sharing ratio, and the identity of partners, nevertheless, on the facts found by the Tribunal, the Tribunal decision must be held to be correct. The effect of the inclusion of the income of the other firm in the income of the assessee‑firm is only to boost the income of the assessee‑firm and no more. The partners do not change, nor is the profit‑sharing ratio altered by reason of that inclusion. That was also not the case pleaded by the Revenue before the Tribunal. There was no ground on the basis of which the authority could decline to continue the registration of the firm. Whatever action the Revenue may wish to take to penalise the partners for not disclosing the full extent of their income, was still open to the authorities to initiate, but the facts found did not warrant a refusal to continue the registration. The first question referred to us must be answered in favour of the assessee. The second question is really hypothetical. If an answer is to be provided, it has to be in accordance with the law laid down by 4he Supreme Court in the case of CIT v. Nitya Nand Devkinandan (1997) 227 ITR

154. The law having been settled by the Supreme Court and being binding on all the authorities in the country, the law has to be ascertained with reference to that decision of the Supreme Court. The second question is answered in favour of the Revenue. No costs. M.B.A./586/FC Order accordingly.