Judgment

B. P. SINHA J. (who delivered the judgment on behalf of himself and J. L. KAPUR J.): The common question of law arising in these two appeals on certificates of fitness granted by the High Court of Calcutta under S. 66A(2) of the Indian Income-tax Act, 1922, is the effect and scope of the words constituted under an instrument of partnership" in S. 26A of the Income-tax Act, which, in the course of this judgment, will be referred to as the Act.

2. The facts of the two cases, leading up to these appeals, though not dissimilar, are not identical. They are, therefore, set out separately.

3. In Civil Appeal No. 85 of 1957, Messrs. R. C. Mitter and Sons, 54, Rani Kanto Bose Street, Calcutta, claim to be a firm said to have been constituted in April 1948, with four persons whose names and shares in the nett profits of the partnership business, are stated to be as under:

(a) Ramesh Chandra Mitter-40 per cent. of the nett profits.

(b) Sudhir Chandra Mitter-30 per cent of the nett profits.

(c) Sukumar Mitter-20 per cent. of the nett profits,

(d) Sushil Chandra Mitter-10 per cent.of the nett profits.

The firm intimated its bank, the Bengal Central Bank, Limited, (as it then was), of the con