Law:

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JUDGMENT Chakravartti, CJ.-This is a reference under section 66(i) of the Income-tax Act by the Calcutta Bench of Appellate Tribunal of two questions of law. One of them is concluded by the judgment we have just delivered in the case of R.C. Mitter and Sons v.Commissioner of Income-tax, West Bengal, Calcutta [1955] 28 ITR 698. The facts are as follows:- The assessee is Messrs. D.C. Auddy and Brothers, Calcutta, described as an unregistered firm. It is said that the firm commenced on the 30th June, 1944, and that a deed of partnership was executed on the 2nd June, 1948. An application for registration of the firm was made on the 24th August, 1949, with respect to the assessment years 1945-46 and 1946-47. The accounting year relative to the first of the assessment years was the period between the 30th June, 1944, and the 13th April, 1945, and that relative to the second assessment year was the period between the 14th April, 1945, and 13th April, 1946. The deed of partnership was thus executed long after the expiry of even the second of the assessment years. The firm's application for registration having been refused by all the authorities, the following question has been referred to this Court with reference to both the assessment years. "Whether the assessee firm constituted orally in June, 1944, can validly be registered in the assessment years 1945-46 and 1946-47 under section 26 A of the Indian Income-tax Act on the basis of a Memorandum of Partnership executed in June, 1948?" We have already held, in Income-tax Reference No. 44 of 1954 [1955] 28 ITR 698 and for the reasons given by us in our judgment in that case, that no registration can be claimed under section 26A of the Act with respect to any assessment year, unless at or prior to the commencement of the relative accounting year there was an instrument of partnership creating the firm and unless such an instrument governed the distribution of profits in the said accounting year. The answer to the first question set out above must, therefore, be in the negative. A second question has been referred in connection with the assessment for the assessment year 1946-47. It appears that the books of the assessee…

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