SABYASACHI MUKHARJI, J.

( 1 ) IN this reference under Section 256 (1) of the Income-tax Act, 1961, the following question has been referred to this court :" Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the assessee is not entitled to continuation of registration for the assessment years 1968-69 and 1969-70?"

( 2 ) THIS reference relates to the assessment years 1968-69 and 1969-70. It was claimed in the course of proceedings for the assessment year 1967-68 that the assessee was a firm consisting of two partners, namely, Shri Shyamdhan Sett and Sm. Krishna Sett, which was entitled to registration. This was followed by a claim for continuation of registration for the assessment years 1968-69 and 1969-70. The Income-tax Officer did not allow registration for the assessment year 1967-68 on the ground that since Shyamdhan Sett got drowned while taking a bath in the river Hooghly on the 3rd October, 1967, and was not heard of since then, there was no genuine firm in existence. The Income-tax Officer refused the claim of registration for the assessment year 1967-68 and the claim for continuation of registration for the assessment years 1968-69 and 1969-70.

( 3 ) THERE was an appeal before the Appellate Assistant Commissioner from the said decision of the Income-tax Officer. The Appellate Assistant Commissioner by a consolidated order granted registration for the assessment year 1967-68 and continuation of registration for the assessment years 1968-69 and 1969-70. The revenue did not question the order of the Appellate Assistant Commissioner granting registration for the assessment year 1967-68, since during the previous year relevant to this assessment year, Shri Shyamdhan Sett was alive, but the revenue challenged the action of the Appellate Assistant Commissioner in granting continuation of the registration for the assessment years 1968-69 and 1969-70 and filed appeals against the order of the Appellate Assistant Commissioner for those years. The Tribunal referred to the decision of this court in the case of Sandersons and Morgans v. Income-tax Officer and was of the opinion that there was an alteration in the set up of the firm, namely, by death or incapacity of the partner and as such there was a change in the constitution of the firm and, therefore, according to the Tribunal, the firm was not entitled to continue its registration. The Tribunal also thought it necessary to point out that under Sub-rule (5) of Rule 22 of the Income-tax Rules, 1962, the application was defective.

( 4 ) IT has to be mentioned that in the meantime on or about the 26th February, 1968, this court had appointed one Gopal Chandra Sett to be the administrator-pendente lite in respect of the estate of Shyamdhan Sett. The relevant portion of the order reads as follows :" It is ordered that without being required to furnish any security and without being allowed any remuneration the said applicant, Gopal Chandra Sett, be and he is hereby appointed the administrator-pendente lite (hereinafter referred to as the ' said administrator ') of the estate and properties of the deceased above-named with power to him to get in and collect all moneys due and properties belonging to the estate of the deceased above named and to look after and/or manage the business and interest of the deceased above-named in the firm ' the Bengal Decorators ' (hereinafter referred to as the ' said firm ') and to conduct or defend all suits or proceedings by or against the deceased above-named in any court and for the purpose thereof to open or operate all bank accounts and to appoint servants, agents, pleaders, advocates and attorneys and to make sign, verify and affirm all pleadings, petitions, affidavits and other necessary documents and papers and to sign, endorse or encash cheques, drafts and other negotiable instruments on behalf of the deceased above-named. And it is further ordered that the said administrator do, o

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