MESSRS. R. C. MITTER & SONS versus THE COMMISSIONER OF INCOME-TAX, WEST BENGAL, CALCUTTA

Citation: [1959] SUPP. 2 S.C.R. 641 · Decided: 15-04-1959 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA, J.L. KAPUR, M. HIDAYATULLAH · Disposal: Dismissed

Judgment (excerpt)

(2) S.C.R. 
SUPREME COURT REPORTS 
641 
The conclusion at which we have arrived is that the 
Act and its several provisions do not suffer from the 
vice of extra-territoriality in the sense .suggested by 
learned counsel for the respondent and there is no such 
conflict of jurisdiction as learned counsel for the res-
pondent has suggested. Accordingly, the Act is good 
and applies to the Baidyanath temple and the proper-
ties appertaining thereto. 
The result, therefore, is that the appeal succeeds 
and is allowed with costs. The judgment and order 
of the High Court dated October 9, 1953, are set aside 
and the petition under Art. 226 of the Constitution 
made by the respondent must stand dismissed with 
costs. 
Appeal allowed. 
MESSRS. R. C. MITTER & SONS 
v. 
THE COMMISSIONER OF INCOME-TAX, 
WEST BENGAL, CALCUTTA 
(B. P. SINHA, J. L. KAPUR and 
M. HIDAYATULL~H, JJ.) 
Income-tax-Registration of firm-Procedure-" Constituted 
under an instrument of partnership", Meaning of-Indian Income-
tax Act, r922 (XI of r922), s. 26A, Rules 2 to 6B. 
The question for determination in these two appeals was 
whether the appellant firms were entitled to registration under 
s. 26A of the Indian Income-tax Act and the common point of 
law involved was the interpretation of the WOjds "constituted 
under an instrument of partnership " occurring in that section. 
In Appeal No. 85 the assessee firm was said to have been consti-
tuted by a verbal agreement in April, 1948, and the deed of 
partnership was drawn up in September, 1949. The application 
for registration under s. 26A of the Act for the assessment year 
1949-1950 was made thereafter to the Income-tax Officer. In 
Appeal No. 389 the assessee firm was verbally constituted in 
Si 
• 
I959 
The State of 
Bihar &· Others 
v. 
Bhabapritananda 
Ojha 
S. K. Das]. 
1959 
April r5. 
642 
SUPREME COURt REPORTS 
tl959] Supp. 
1959 
June, 1944· and a memorandum of partnership was executed in 
June 1948. The application for registration under s. 26A for 
Messrs. R. C. 
the assessment years 1945-46 and 1946-47 was made on August 
Mitter &- Sons 
24, 1949. 
v. . . 
The applications were rejected by the Income-tax Officer 
The Commissioner and tbe appeals preferred by the assessees were also dismissed 
0!· Income-tax, 
by the Income-tax Appellate Tribunal. The High Court took 
West Bengal, 
the view thats. 26A of the Indian Income-tax Act contemplated 
Calcutta 
a firm created or brought into existence by an instrument of 
partnership and answered the questions against the assessees. 
It was contended on their behalf that so long as the assessment 
was not made, they were entitled to registration irrespective of 
the year in which the instrument of partnership came into exist-
ence. 
This was controverted on behalf of the Revenue and their 
case was that a firm seeking registration under s. 26A of the Act 
should be created by an instrument of partnership, or at any rate, 
such instrument should be in existence during the relevant 
accounting year, i. e., the year previous to the year of assess-
ment in respect of which the application for registration was 
made. 
Held, that the words "Constituted under an instrument of 
partnership" occurring in s. 26A of the Indian Income-tax Act 
included not only firms that· were created by instruments of 
partnership but also those that were subsequent to their creation, 
clothed in legal form by reducing the terms and conditions of 
the partnerehip in writing. 
Dwarkadas Khetan & Co. v. Commissioner of Income-tax, 
Bombay City, Bombay, [1956] 29 I.T.R. 903, approved. 
Kalsi Mechanical Works, Nandpur v. Commissioner of Income-
tax, Simla, [1953] 24 I.T.R. 353, Padam Parshad Rattan Chand v. 
Commissioner of Income-tax, Delhi, (1954] 25 I.T.R. 335, Bery 
Engineering Co., Delhi v. Commissioner of Income-tax, Delhi, [1955] 
28 I.T.R. 227, Income-tax Commissioner, Delhi v. Messrs. Birdhi 
Chand Girdhari Lal, [1955] 28 I.T.R. 280 and Khimji Walji & 
Co. v. Commissioner of Income-tax, Bihar and Orissa, [1954] 25 
I.T.R. 462, dissented from. 
Section 26A, read with ss. 26, 28 and Rules 2 to 6B, laid 
down the following essential conditions that a firm must fulfil 
before it could claim registration under s. 26A of the Act,-
(1) that i' must be constituted under an Instrument of 
Partnership, specifying the individual shares of the partners ; 
(2) that an application on behalf of and signed by, all the 
partners, containing all the particulars as set out in the Rul

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