1. ' SALEEM AK liTAR, J.--The Applicant assessee has made this reference application raising the following question:- ' Whether on the facts and in the circumstances of the case, the leareed Tribunal was right in maintaining the order of the learned Income-tax Officer refusing renewal of registration of applicant firm ?"
2. ' The applicant firm was constituted under a partnership deed, dated 1st April, 1959 with Haji Usman Tayab, Suleman Haji Usman, Ahmed Haji Usman and Tar Muhammad Haji Usman. This firm was registered with the Registrar of Firms on 22-9-1959. On 31st March, 1961 Ahmed Hay and Tar Muhammad retired from the Partnership business and under a partnership deed, dated 1st April, 1961 the firm was constituted with Haji Usman Tayab and Suleman Haji Usman as its partners.
3. Again on 1-4-1967 Ahmad Haji Usman and Tar Muhammad Haji Usman, the two partners who retired from the partnership business on 31st March, 1961 joined Haji Usman Tayab and Suleman Haji Usman. A fresh Partnership deed, dated 1st April, 1967 between these persons was executed.
4. These two changes made in 1961 and 1967 were entered with the Registrar of Firm on 5-4-1971 showing that the firm was reconstituted on these dates. The firm was granted registration by the Income-tax Officer and during assessment years 1968-69 and 1969-70 renewal was also allowed.
5. For the assessm ent year 1970-71 the applicant firm applied for renewal of registration when the Income-tax Officer required it to furnish proof that the firm is registered under the Partnership Act.
6. The case was adjourned several times but as no evidence of registration was produced, in view of section 26-A (5) of the Income-tax Act, the renewal of registration was not allowed. The applicant filed an appeal before the learned Tribunal but ing registration was maintained. The learned Tribunal held that on 1-4-1961 when two retired partners had joined the firm a fresh deed of partnership was drawn up which provided that the firm constituted under partnership deed, dated 1st April, 1959 had been dissolved on 31-3-1961. The Tribunal, therefore, held that the firm constituted in 1959 which had been registered with the Registrar of Firms on 22-9-1959 stood dissolved on 31-3- 1961 and, therefore, the new firm constituted on 1-4-1961 could not take benefit of the registration of the dissolved firm for the purpose of filing application under section 26-A It seems that the applicant's contention was that the firm constitute.; on 1st April, 1959 continued with changes in its constitution. On this premises, the learned counsel for the applicant has contended that the registration certificate issued by the Registrar of the firm in 1959 is valid and applicable to the applicant.
7. ' Mr. Pasha has referred to Commissioner of Income-tax v. Haji Mukhtar & Co. 1980 PTD 415 where the partnership dated 5-6-1966 was registered with the Registrar of Firms and subsequently one of the Partners retired and three other persons were introduced into the partnership by a deed executed on 1-4-1969. The firm's name and business remained the same. On firm's application, the Registrar registered the alteration and re-constitution of the firm. Thereafter, the firm applied to the Income-tax Officer for renewal of the registration of firm under 26-A of the Act. The registration was refused on the ground that the Firm created by deed, dated 1-4-1969 was a new entity which was not registered with the Registrar of Firms. In appeal, the Tribunal held that there was only change in the constitution of the firm which has been recorded by the Registrar of Firms, therefore, registration should have been granted. In the reference filed by the department, it was held that where the Registrar of Firms has registered a firm, the Income-tax Officer could not go back and determine the legality of proceedings before the Registrar of Firms. The learned counsel relying on this observation contended that as the Registrar of Firms has registered the reconstitution, the Income-tax Officer and the Tribunal should have accepted it and should have treated the firm to have continued and that it was not a new firm.
8. ' The first point that strikes is that the learned Tribunal has given a finding of fact that the firm was constituted on 1-4-1961. This finding has not been challenged on the ground that it is not based on any evidence at all. If the question is approached in this background then the applicant can hardly challenge the legality of the Tribunal's order.
9. The registration of firm under the Partnership Act is specifically within the ambit and scope of the authority of the Registrar of Firms. If a registration has been granted or reconstitution has been recorded by the Registrar, prima facie it will be presumed to be correct and unless the presumption is rebutted the Income-tax Officer will not question it. The applicant had filed a partnership deed, dated 1-4-1961 in which it was clearly stated that the firm constituted on 1-4-1959 has been dissolved. On the evidence produced by the applicant it is fully established that the applicant firm is not a reconstituted firm, but it is completely a new firm. Such circumstances and facts on record completely destroy the presumption that could be drawn from the certificate of the Registrar of the Firms. The Income-tax Officer in such circumstances would be justified to draw his own inference and ignore the certificate issued by the Registrar. In the present case, the reconstitution of the firm was recorded by the Registrar on 5-4-1971. It is significant to note that the changes made on 31-3-1961 and on 1-4-1967 were both entered on the same date i,e, 5-4-1971.
10. There is no evidence on record to show that the firm had applied for recording these changes immediately on the reconstitution of the firm. The delay in getting these changes recorded for so many years adversely affects the bona fide nature of these entries. In these circumstances the observations made in 1980 PTD 415 are not applicable to the facts of the present case.
11. The learned counsel for the applicant has referred to Muhammad Ishaque v. Eros Theatre PLD 1977 SC 109 where it was held that if the certificate of registration has been issued by the Registrar of Firms a presumption of correctness attaches to this document under section 68 of the Partnership Act and the onus lies on the other side to displace that presumption. The certificate issued by the Registrar of Firms relied on by the applicant carries with it presumption of correctness which is always rebuttable. The burden is upon the party who challenges the correctness of such certificate.
12. In the present case, the burden was upon the department to establish that the entries made in the certificate treating the firm as having been reconstituted are not correct. In our opinion this burden has satisfactorily been discharged by the department from the partnership deed itself, which states in clear terms that the firm constituted in 1959 had been dissolved. It was not necessary for the department, in the face of this evidence, to produce any further evidence. The applicant did not produce any other evidence except the certificate of the Registrar which stands contradicted by the partnership deed itself.
13. ' Mr.I.N. Pasha then contended that section 26-A (5) was amended in the year 1974 whereby the condition that firm should be registered with the Registrar of Firms for the purposes of filing application for renewal of registration was deleted. Therefore, from 1974 it was not necessary to first obtain registration of the firm before filing application for renewal of registration. The learned counsel further contended that as this provision is procedural in nature it should be applied with retrospective effect. In this regard, the learned counsel has relied on Commissioner of Income-tax, North Zone v. Rehman Printing Press Lahore (1973) 28 Taxation 40. In this case, the question arose about the registration of the .Firm and as the provision was amended when the appeal had not been disposed of, it was held that "on the theory that the appeal is in the nature of rehearing, the Court has power in moulding the relief to be granted in a case of appeal to take into account even facts and events which have come into existence after the decree appealed against". This rule was applied in that case, and referring to the amendment following observation was made:- "In law the registration is allowed for the whole year and not merely for a part of it. The above amendment in section 26-A of the Act in this respect was introduced on 1st July, 1974. But as already discussed above, it was applicable retrospectively to the applications and the appeals for registration of the firm pending on the date of the amendment. Needless to add here that before a Firm is registered it has also to comply with all the other remaining requirements of law on the subject."
14. ' The principle, therefore, adduced was that appeal is continuation of the original proceedings and the Appellate Court can take notice of the subsequent events, legal or factual and pass the judgment accordingly. It that case, the amendment was introduced at a time when the matter was before the Tribunal in appeal. It was, therefore, held that the Tribunal should have taken notice of these amendments and applied it with retrospective effect. In the present case, the amendment was made in 1974 whereas, Appellate Tribunal had decided the matter on 12-12-1972. On that date the provisions of 26-A (5) without any amendment were applicable to the present case.
15. ' Mr. Pasha then contended that assessment proceedings continue till they are culminated in appeal before the Supreme Court including the Reference under section 66 of the Income-tax Act and on that assumption, the learned counsel further contended that the High Court should take notice of the amendment and grant the relief. The learned counsel relied on the ease of S.P. Jaswel v. Commissioner of Income-tax (1969) 73 1 T R 179.
16. ' This contention of the learned counsel may not be relevant for the present case. While exercising jurisdiction under section 66 (1) of the Income-tax Act this Court does not act as an appellate Court. The jurisdiction High Court exercises under section 66 is advisory in respect of question of law arising from the order of Tribunal and referred to it. The question referred by the applicant seeks determination whether the order passed by the Tribunal confirming the order of the Income- tax Officer was proper and legal. No question has been raised that in view of amendment made in section 26-A by Finance Act, 1974 the Tribunal should have granted registration of firm. Strictly speaking such a question does not arise from the order of the Tribunal particularly so when section 26-A was amended after the Tribunal had passed the order. Determination of such a question will amount to travelling beyond the scope of our jurisdiction. The legality of the order passed by the Tribunal has to be judged with reference to the law applicable at the time when the order was passed. It is only the Appellate Court which can take note of the subsequent events legal or factual and decide the case.
17. ' For these reasons our answer to the question is in the affirmative.
18. Answered in the affirmative.