P L D 1969 Dacca 582 (PLP)

A. S. CHOWDHURY, J.‑This is a reference under section 66(t) of the Income‑tax Act by the Income‑tax Appellate Tribunal, Dacca Bench, Dacca and the question referred to us is as follows: "Whether in the facts and circumstances of the case, the Income‑tax Tribunal was right in holding that as the applications were not signed by all the partners of the firm, the Income‑tax Officer could not in law grant registration to the firm for the assessment years, 1958‑59, 1959‑60 and 1960‑61?" The relevant facts are as follows: On 12‑2‑54 a partnership firm came into existence and a deed to that effect was duly registered bringing into exis tence a firm of five partners. On 22‑1‑58 an application was filed for registration under section 26‑A of the Income‑tax Act. Thereafter two applications were filed for renewal of registration for two different assessment years. The first application for registration related to the assessment year of 1958‑

59. The two applications for the renewal were regarding assessment years, 1959‑60 and 1960‑

61. Although the first application was filed in January 1958, it was only on 21‑3‑62, that the Income‑tax Officer intimated the assessee‑firm that he was unable to accept these applications as they were not signed by all the five partners of the firm. By then, there was no time under the law to file applications for those assessment years. Mr. Afzalul Haque submits that a partnership firm registered under section 26‑A enjoys certain income‑tax relief and it must file its application strictly in accordance with the rules. It is, however, contended before us by Mr. Abbas that the rule 3 relied on by the Income‑tax Authorities is ultra vires of the Act. Subsections (1) and (2) of section 26‑A reads as follows: ‑‑ "(1) Application may be made to the Income‑tax Officer on behalf of any firm, constituted by an instrument of partnership executed in writing before the end of the previous year for the year for which the assessment is to be made and 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." Mr. Abbas contends that subsection (1) of section 26‑A provides that an application may be made "on behalf of any firm." His contention is that the expression "on behalf of any firm" indicates that the law is that the application can be made on behalf of a firm and he elaborates his arguments by saying that it can be signed by one or more of the partners, and this expression clearly shows that all of them need not sign. His further contention is that ex pression "such person or persons" occurring in subsection (2) quoted above would also indicate that one person may also sign such an application. He therefore contends that rule 3 which requires that such an application shall be signed by all the partners is ultra vires subsections (1) and (2) of sec tion 26‑A. I should at this stage read rule 3 of the Rules "Any firm constituted under an instrument of partnership specifying the individual share of the partners, may make an application for registration for purposes of section 26‑A of the Income‑tax Act, 1922 (XI of 1922) hereinafter in these rules referred to as the Act). Such application shall be signed by all the partners (not being minors) personally, or, in the case of a dissolved firm, by all persons (not being minors), who were partners in the firm immediately before its dissolution and by the legal representative of any partner, who is deceased." Mr. Abbas has drawn our attention to the provisions in the Partnership Act in allowing a partner to act for the firm. He has relied on section 18 of the Partnership Act which reads as follows: "Subject to the provisions of this Act, a partner is the agent of the firm for the purpose of the business of the firm." It is true a partner may, subject to the provisions of the Partnership Act, may bind the firm itself. But in this case a specific provision has been made to the effect that while applying for registration under section 26‑A of the Act, the application shall be signed by all the partners. We do not see how section 18 of the Partnership Act which could apply to all other business transactions would override the provision of another Central Act, namely, section 26‑A of the Income -tax Act and compel the Income‑tax Authorities to accept the application to be filed by some of the partners. We are of opinion that the Partnership Act is a general law which will govern the business transaction of the firm but it cannot override a specific provision. In fact, this specific provision shall override the general provisions made in the Partnership Act. The question, however, is that whether the rules are ultra vires of section 26‑A of the Act, as claimed by Mr. Abbas. Our opinion is that these Rules are intro vires of section 26‑A. This contention of learned Advocate is of no substance. It will be seen that subsection (2) of section 26‑A clearly lays down that the Rules may be prescribed in regard to such person or persons and at such times and such particulars and in such manner for filing the application for registration. The expression such person or persons occurring in subsection (2) clearly shows that the power fixing the number of persons requiring to file such application has been delegated to the Rule making authorities. Therefore, this contention is of no substance. It is clearly laid down in the Rules that the application should be filed by all the partners and the income‑tax authorities have, therefore, rightly refused to entertain this application in question. Mr. Abbas has drawn our attention to the long delay in the disposal of his application's and he has clamoured for justice saying that had the first application been disposed of without delay, his subsequent applications would have been signed by all the partners and he would have undergone financial loss for not being able to obtain the relief granted to a registered firm. It is indeed deplorable that such appli cations are left unattended by the Department for years and then they are turned down for technical defects. Had the first application been disposed of expeditiously, the assessee would have been spared some financial loss. At the same time it is also true that a firm should be vigilant about its rights and should be aware of the rules required to file an application for registration. For the reasons stated above, the questions answered in the affirmative. Having regard to the facts and circumstances of the case we leave the parties to bear their own costs. A. H. KHAN, J. I agree. S. Q. Question answered in the affirmative.