The provisions of Sec.26A, Income-tax Act, and the rules framed thereunder are mandatory in nature and unless these provisions are strictly complied with, the partnership firm is not entitled to get itself registered under the provisions of Sec.26A.

Ramaswami, J.

1. In this case the Income-tax Appellate Tribunal has referred the following question of law for the opinion of the High Court :

"Whether the firm constituted by the partnership deed dated 1-5-1931 could be registered in accordance with the provisions of Sec.26A, Income-tax Act, and the rules made thereunder for the assessment years 1945-46, 1946-47 and 1947-48?"

2. By a document of partnership, dated 7-12-1916 there was a partnership firm started in the name of Khimji Walji & Company. There are two partners Khimji Walji with 10 annas share and Khora Ramji with 6 annas share. After Khimji Walji died his three sons, Purushotam, Panchan and Devram, acquired the 10 annas share of the partnership. Similarly, on the death of Khora Ramji his son Jeevram and grandson Dharamshi acquired his 6 annas interest in the partnership. On the 1st of May 1931 all these five members of the families of Khimji Walji and Khora Ramji entered into a new partnership called Khimji Walji & Company. Panchan and Devram were minors and the deed of partnership was executed on their behalf by their guardian Gangabai. In this deed of partnership the three sons of Khimji Walji were collectively shown as having 10 annas share and the heirs of Khora Ramji were also shown collectively for 6 annas share. After the two minor sons, Panchan and Devram, attained majority, applications were made to the Income-tax authorities for the registration of the firm. For the assessment years 1945-46 and 1946-47 two separate applications were made dated the 21st of November 1945 and the 24th Of July 1946.

On the 1st of April 1947 a second deed of partnership was executed between these five persons. This deed affirmed the first deed of partnership and in addition specified the individual share of the live persons. Purushotam, Panchan & Devram were shown in this document as having three annas four pies share each and Jeev-ram and Dharamshi were shown as having 3 annas share each. For the assessment year 1947-48, an application for registration of the firm was made on 19-2-1948. The Income-tax Officer rejected all the three applications. As regards the first two applications the order of rejection was based upon the ground that the shares of the individual partners were not specified in the document of partnership and the applications under Sec.26-A, Income-tax Act did not also specify the shares of the individual partners. The third application was rejected on the ground that the second deed of partnership was executed after the counting period had expired.

The assessee preferred appeals to the appellate Assistant Commissioner but the appeals were dismissed. Appeals were further taken to the Income-tax Appellate Tribunal. It was argued on behalf of the assessee that the three sons of Khimji Walji, Purushotam, Panchan and Devram constitued a Hindu undivided family and the two heirs of Khora Ramji, Jeevram and Dharamshi, similarly constituted another Hindu undivided family and that the partnership was formed of these two Hindu undivided families whose shares were specified in the document. This argument was rejected by the Appellate Tribunal and the appeals preferred on behalf of the assessee were dismissed.

3. It is convenient in the first place to deal with the two applications made for the assessment years 1945-46 and 1946-47. On behalf of the assessee Mr. Dutt put forward the argument that the Income-tax authorities should have registered the partnership under Sec.26A, Income-tax Act, though the shares of the individual partners were not expressly specified in the applications, or in the deed of partnership. Counsel pointed out that if the shares of the partners were not specified it should be taken in law that the partners have equal shares. In support of his argument, counsel referred to Sec.13(b) of the Partnership Act which states that :

"subject to contract between the partners, the partners are entitled to share equally in the profits earned and shall