COMMISSIONER OF INCOME-TAX MADHYA PRADESH, II BHOPAL Versus MESSRS BIRBAL KHANNA CO. JABALPUR

ORDER

This is an application under section 256(2) of the Income‑tax Act 1961, for directing the Income‑tax Appellate Tribunal to state the case and, refer the questions of law set out in para. 17 of the application:

2. The reference arises out of the proceedings for registration of the assessee firm for the assessment year 1971‑72. The assessee firm consisted of eight partners. All of them said that before the I.T.O. All of them said that Mohammad Ishaq the eighth partner had signed the deed 'of partnership in their presence and was a partner in the business. The I. T.O. did not accept this statement and refused registration of the firm. The Appellate Assistant Commissioner confirmed the order of the Income‑tax Officer. It appears that after the I.‑T.O. had disposed of this case, an affidavit of Muhammad Ishaq, dated 11th, May, 1976 was produced before the I.‑T.O. The Tribunal relied upto the statement of seven partners and the affidavit to hold that Muhammad Ishaq was in fact a partner. The learned Standing Counsel for the Department submitted that as the affidavit of Muhammad Ishaq was not filed, before the I.‑T.O. pissed the order refusing to register the firm, the Tribunal could not have relied upon it. The affidavit was already on record of the I.T.O. The assessee could have produced the same even before the Tribunal. We do not find that there was any illegality in relying upon the affidavit. The question whether Muhammad Ishaq was in fact a partner was a question of fact and, therefore, the Tribunal's finding must stand. In our opinion no question of law arises. The application is dismissed with costs.

M. B. A. Application dismissed.