DIPAK KUMAR SEN, J.

( 1 ) M/s. Joshi and Co. , the assessee, is a partnership firm. Till December 16, 1975, the partners of the assessee were Amritlal Parkhani, Prataprai Joshi, Dilip Joshi and Bhupendra Joshi. The partnership was constituted by a deed dated April 28, 1973, and contained, inter alia, the following clause :" If any partner shall die during the partnership, then his heirs executors, administrators or representatives or any person or persons to whom he may by will bequeath the same shall be entitled to the share of such deceased partner in the capital, stock, property and effects of the partnership business and may either continue as a partner or partners in the business in respect and to the extent of the share and interest of such deceased partner or may sell such share and interest in the same manner as are hereinbefore contained in Clause 17 concerning a sale by a retiring partner. "

( 2 ) BHUPENDRA Joshi, one of the partners of the assessee, died on December 16, 1975--15 days prior to the end of the accounting year of the assessee ending on December 31, 1975.

( 3 ) AFTER the death of Bhupendra, it was agreed between the continuing partners and the heirs of Bhupendra that Jitendra Joshi, a son of Bhupendra, would be admitted as a partner in the firm. A new deed of partnership was drawn up and executed on January 7, 1976. It was recorded in the new deed that the continuing partners had been carrying on the said partnership business along with the new partner, Jitendra, with effect from December 17, 1975.

( 4 ) IN the meantime, the assessee applied for fresh registration under Section 184 (8) of the Income-tax Act, 1961, both in Form No. 11 and Form No. 11a on December 24, 1975. A letter was filed stating that the deed of the new partnership would be submitted at the earliest.

( 5 ) IT is not in dispute that the deed which was executed on January 7, 1976, was filed on January 14, 1976. It is also not in dispute that prior to the death of Bhupendra, the assessee had been assessed as a registered firm up to the assessment year 1975-76.

( 6 ) IN assessing the assessee to income-tax for the assessment year 1976-77, the Income-tax Officer found that the assessee had filed the forms on December 24, 1975, as aforesaid without enclosing copy of the new partnership deed. He found further that on the death of Bhupendra on December 16, 1975, there was a change in the constitution of the firm. The deed for the new partnership was drawn up subsequent to the accounting year ending on December 31, 1975, and that the said deed was also registered later. He held that as the new deed had been drawn up on January 7, 1976, after the close of the accounting year, no operative deed of partnership was in existence during and up to the end of the accounting year, i. e. , up to December 31, 1975. As the partnership was not evidenced by any instrument in writing during and at the end of the accounting year, he held that the assessee should be held to be an unregistered firm. The assessment was made accordingly.

( 7 ) BEING aggrieved, the assessee preferred an appeal against the decision of the Income-tax Officer to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner also found that during the relevant accounting year, there was no partnership deed in existence and on the facts held that the refusal of the Income-tax Officer to grant registration to the assessee was justified. The appeal was rejected.

( 8 ) THE assessee went up in further appeal before the Income-tax Appellate Tribunal. It was contended before the Tribunal that it was not prescribed in the Income-tax Act, 1961, nor in the statutory forms that there should be a partnership deed in existence before the close of the accounting year in order to entitle a partnership firm to be registered under the Income-tax Act. It was contended that the only requirement of the statute was that the partnership should be evidenced by an instrument. In this case,

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