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Civil Reference Case No. 5 of 1956, decided on 2nd January, 1957.
S. 26‑A‑Application for registration‑Original deed found to be tampered with Registration should not be allowed.
The assessee submitted an application for registration along with a copy of the partnership deed. At the time of assessment the original deed was produced, on perusal of which certain discrepancies were found and consequently the registration was refused.
On appeal the Appellate Assistant Commissioner allowed registration holding that the assessee had made a bona fide mis take in putting down the date viz., the 7th August, 1952 intstead of the 6th September, 1952 and the deed was not tampered with but it was an amended one. The Tribunal did not accept the Appellate Assistant Commissioner's finding and held that the deed was altered in material particulars.
Held, that if a proper application is not filed or the application is accompanied by a faked instrument or a tampered instrument, no registration can be allowed under the law.
Asrarul Hussain with Kamaluddin Husain for Appellant.
A. F. M. Mesbahuddin with Abdul Matin Khan Choudhry for Respondent.
This is a reference under subsection (1) of section 66 of the Income‑tax Act made at the instance of the assessee, Messrs Dacca Tobacco Stores. The point of reference is:
" Whether, in the facts and circumstances of the case, the Tribunal was justified in refusing registration on the basis of an instrument which had been subsequently tampered within material particulars after it had been executed "
The material facts are that the assessee‑respondent made an application in connection with the assessment year 1952‑53, based on the previous year' ending the 13th of April, 1951, under section 26‑A of the Act on the 29th of November, 1952. This claim for registration was made on the basis of a partner ship dated the 7th of August, 1952. Along with the application for registration a copy of the instrument of partnership was also enclosed, and the original instrument of partnership was subsequently produced and taken away by the assessee. The registration was refused by the Income‑tax Officer on the grounds, (1) that the page 3 of the original deed of partnership was not typed to the end like the preceding and subsequent pages, (2) that the original page 3 was substituted by another page 3 after the 27th of November, 1952, (3) that the sheet of cartridge paper used in page 3 was smaller in size than the sheets used for other pages of the deed, and (4) that the deed of partnership made on the 7th of August, 1952 was drawn up on a stamp paper pur chased on the 6th of September 1952.
On appeal the Assistant Commissioner of Income‑tax held in favour of the assessee. He found that the assessee had made a bona fide mistake in putting down the date the 7th of August, 1952, instead of the 7th of September, 1952, and that the deed was not tampered with but it was an amended one.
On appeal to the Appellate Tribunal, the accept this finding of fact of the Income‑tax Assistant commissioner and held that the partnership deed was altered in particulars. However, at the instance of the Appellate Tribunal has made this reference on the point mentioned above.
This is a reference under subsection (1) of section 66 of the Income‑tax Act made at the instance of the assessee, Messrs Dacca Tobacco Stores. The point of reference is:
"Whether, in the facts and circumstances of the case, the Tribunal was justified in refusing registration on the basis of an instrument which had been subsequently tampered within material particulars after it had been executed "
The material facts are that the assessee‑respondent made an application in connection with the assessment year 1952-53, based on the previous year ending the 13th of April, 1951, under section 26‑A of the Act on the 29th of November, 1952. This claim for registration was made on the basis of a partner ship dated the 7th of August, 1952. Along with the application for registration a copy of the instrument of partnership was also enclosed, and the original instrument of partnership was subsequently produced and taken away by the assessee. The registration was refused by the Income‑tax Officer on the grounds, (1) that the page 3 of the original deed of partnership was not typed to the end like the preceding and subsequent pages, (2) that the original page 3 was substituted by another page 3 after the 27th of November, 1952, (3) that the sheet of cartridge paper used in page 3 was smaller in size than the sheets used for other pages of the deed, and (4) that the deed of partnership made on the 7th of August, 1952 was drawn up on a stamp paper pur chased on the 6th of September 1952.
On appeal the Assistant Commissioner of Income‑tax held in favour of the assessee. He found that the assessee had made a bona fide mistake in putting down the date the 7th of August, 1952, instead of the 7th of September, 1952, and that the deed was not tampered with but it was an amended one.
On appeal to the Appellate Tribunal, the Tribunal did not accept this finding of fact of the Income‑tax Assistant Commis sioner and held that the partnership deed was altered in material particulars. However, at the instance of the assessee the Appellate Tribunal has made this reference on the point mentioned above.
From the very term of reference it is more than clear that it is a finding of fact that the instrument in question was tam pered with in material particulars, and the only point for deter mination is, whether, in spite of such material tampering of the instrument, the Tribunal was justified in refusing registration on the basis of such instrument.
Mr. Asrarul Hussain, counsel, who appears for the assessee, has strenuously urged that the Income‑tax Tribunal should have accepted the finding of the Appellate Assistant Commissioner when the Assistant Commissioner has clearly come to a finding that there was a bona fide mistake on the part of the assessee and that the assessee did not really tamper with the instrument but only amended the same.
The terms of subsection, (1) of election 66 allow the Tribunal only to make a reference to this Court on a point of law.
Here, on the face of the terms in the letter of reference, it is evident that no point of law is involved. We fall to appreciate the point raised by the learned counsel for the assessee at this stage, namely, that, inspite of the reference being made in the form as it is, we should go behind the finding of the Tribunal and accept the finding of the Assistant Appellate Commissioner on a finding of fact. It is not one of the terms of reference, whether the instrument was tampered with in material particulars or not, but whether in spite of the instrument being tampered with in material particulars, the registration was rightly refused or not. That being the position we do not think that the Appellate Tribunal was justified, making this reference under subsection (1) of section 66 on a point which relates only to facts. It is abundantly clear that, if a party does not make a proper application for registration or files an application accom panied by a faked instrument or a tampered instrument, such a party cannot claim registration under the provisions of law, and, there fore, it cannot be said that on these facts the Tribunal had any difficulty as to the applicability of law. Under section 26‑A of the Income‑tax Act all that the Income‑tax authorities have to be satisfied is as to the constitution or the bona fides of the firm which applies for registration.
Hence, the answer to this reference is that the Tribunal was justified in refusing registration on the basis of the instrument which was tampered with in material particulars after it had been executed and the reference is answered in the affirmative with costs.
I agree with my Lord the Chief Justice.
Reference answered in affirmative.
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