K. P. Radhakrishna Menon, J.
1. The Commissioner of Income-tax, Cochin, is before us.
2. The questions referred for our opinion read :
" 1. Whether, on the facts and in the circumstances of the case, the assessee is entitled to registration under the Income-tax Act, 1961 ?
2. Whether, on the facts and in the circumstances of the case, the words 'person' and 'member' occurring in Section 11(2) of the Companies Act, 1956, would include a minor admitted to the benefits of partnership ?
3. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in law in holding that the assessee should be assessed as a registered firm ? "
3. During the relevant years of assessment, except for the year 1975-76, the partnership which is the assessee was having 15 partners and six minors admitted to the benefits of partnership. For the year 1975-76, the partnership consisted of 14 partners and seven minors admitted to the benefits of the partnership.
4. The Income-tax Officer was of the view that the minors admitted to the benefits of the partnership, going by the definition of the word " partner " in the Income-tax Act (vide Section 2(23) Of the Income-tax Act) were also partners and, if that be the position, the partnership must be held to consist of more than twenty persons. Section 11(2) of the Companies Act prohibits the formation of a partnership consisting of more than twenty persons. It cannot, therefore, be said that the application for registration of the partnership is maintainable is the finding of the Income-tax Officer. The Income-tax Officer, accordingly, rejected the application for registration of the partnership. On appeal, the Commissioner of Income-tax (Appeals) reversed the order of the Income-tax Officer entering the finding that the minors admitted to the benefits of the partnership, the definition of partner in Section 2(23) notwithstanding, cannot be treated as partner, and, consequently, held that the finding of the Income-tax Officer that there was no valid partnership was liable to be vacated. Accordingly, the Commissioner of Income-tax (Appeals) allowed the appeal and directed the Income-tax Officer to grant the registration. The Revenue filed a second appeal before the Tribunal. The Revenue reiterated the contention before the Tribunal that a minor admitted to the benefits of partnership is a partner in view of Section 2(23) of the Income-tax Act. The Tribunal, however, was of the view that a minor admitted to the benefits of partnership cannot be treated as a partner and, accordingly, held that the argument of the Revenue cannot be taken cognisance of.
5. The Revenue, thereupon, moved a petition under Section 256(1) of the Income-tax Act seeking reference of the above questions which, according to the Revenue, arise out of the order of the Tribunal. The Tribunal was of the view that the questions are questions of law arising out of the order of the Tribunal and, accordingly, referred them to this court for being dealt with in accordance with law.
6. The common law principle that a minor, not being competent to enter into a contract, is incapable of becoming a partner, is not altered by the Income-tax Act. On the other hand, that the said principle has been recognised by that Act is clear from the provisions contained in Subsection (3)(a) of Section 184. This sub-section says that the application for registration of a firm shall be signed by all the partners (not being minors) personally. In other words to apply for and obtain the registration under the Income-tax Act, the partners shall sign the application for registration, personally. A reference in this connection to Section 30(1) of the Partnership Act is relevant. This section provides that a minor cannot become a partner although, with the consent of all the partners for the time being, he may be admitted to the benefits of partnership. Any deed of partnership which goes beyond this section cannot, therefore, be regarded as valid for the purposes of registration under the Income-tax Act. The definition section, Section 2(23) of the Income-tax Act, considered in the light of Section 30 of the Partnership Act, cannot be said to mean that, in a given case where a minor has, contrary to law, been admitted as a full partner, the document is to be regarded as valid. What the definition does is to empower the authority concerned to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act. The definition, in other words, is designed to confer equal benefits upon the minor by treating him as a partner. This view expressed by us, is supported by a decision of the Supreme Court in CIT v. Dwarkadas Khetan and Co.  41 ITR 528. The Allahabad High Court also has taken the same view as is seen from the rulling in CIT v. Bhawani Prasad Girdhari Lal and Co.  186 ITR 518.
7. The Appellate Tribunal, therefore, is right when it held that the minors who had been admitted to the benefits of the partnership cannot be treated as full-fledged partners. If that be the position, it cannot be said that the partnership which sought registration consists of more than twenty persons.
8. We, accordingly, answer questions Nos. 1 and 3 in the affirmative and in favour of the assessee and the second question in the negative and in favour of the assessee.
9. A copy of the judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.