JUDGMENT OM PRAKASH, J. 1. The petitioner in this writ petition prays for quashing the notice dated February 16, 1988, issued under section 148 of the Income-tax Act, 1961 (briefly "the Act, 1961"), the notice dated February 8. 1988, issued under section 186 of the Act and directions issued by the Inspecting Assistant Commissioner, "C" Range, Kanpur, under section 144A of the Act, which are annexures "2", "1andquot; and "6", respectively, to the writ petition. 2. The brief facts are that the firm, Shubham Fabrics, Swarup Nagar, Kanpur, engaged in the business of manufacturing, processing, dyeing, bleaching, printing ready-made or semi ready-made garments and having allied business, came into existence in the assessment year 1985-86 and the same obtained registration. As there was a change in the constitution of the said firm in the assessment year 1986-87, which is relevant to the instant writ petition, inasmuch as four partners, two of them representing their Hindu undivided families and the remaining two representing their trusts having minor beneficiaries were introduced, the petitioner (hereinafter referred to as "the firm" applied for registration in Form No. 11A under section 187 of the Act and filed its return of income in the status of a registered firm for the assessment year 1986-87. Thereupon, respondent No. 2 issued notice to the firm under section 186 (annexure "1" to the writ petition), calling upon the firm to explain why the registration should not be cancelled. In the notice issued under section 148 (annexure "2" to the writ petition), the Income-tax Officer stated that during the course of the assessment proceedings, it had been noticed that a genuine firm was not in existence. He had this doubt, because the minors were the beneficiaries in the two trusts which were represented by the trustees in the firm. That was why the firm was called upon to file the return in the status of an association of persons. Thereafter, the firm made a reference to the Inspecting Assistant Commissioner under section 144A(1) seeking his directions for the guidance of the Income-tax Officer on the questions : "(i) Whether the firm is not entitled to registration on the ground that two partners joined the firm representing the two trusts having minors as beneficiaries ? Thereafter, the firm made a reference to the Inspecting Assistant Commissioner under section 144A(1) seeking his directions for the guidance of the Income-tax Officer on the questions : "(i) Whether the firm is not entitled to registration on the ground that two partners joined the firm representing the two trusts having minors as beneficiaries ? (ii) Whether the minor beneficiaries of the two trusts are full-fledged partners in the firm ?" On this reference, the Inspecting Assistant Commissioner, relying on an order of the Commissioner of Income-tax (Appeals), Kanpur, in the case of Amar Brothers for the assessment year 1984-85 and on a decision of the Supreme Court in the case of McDowell and Co. Ltd., [1986] 154 ITR 148 took the view that the firm resorted to the device to admit minors as full-fledged partners in the firm which is not permitted under the provisions of the Partnership Act and the Income-tax Act and that therefore, the correct status of the firm would be an association of persons. He, however, directed the Income-tax Officer to complete the assessment on a protective basis in the status of a registered firm and to initiate separate proceedings to assess the income substantively in the status of an association of persons. 3. As the contention of the firm that, in law, it should be treated as a genuine registered firm was rejected, it has challenged the directions given by the Inspecting ASsistant Commissioner as well as the two notices issued by the Income-tax Officer. 4. A counter-affidavit has been filed on behalf of respondent No. 2 stating in paragraph 11 that, ultimately, the minors shall be saddled with the losses, which shall be in contravention of the Indian Partnership Act and the Contract Act, because in the partnership deed nothing has been mentioned for the share of the two partners representing the trusts in the firm. We have heard Sri Upadhyaya, learned counsel for the petitioner, and Sri Vinod Rastogi learned additional chief standing counsel for the respondent, at the admission stage. Having heard learned counsel for the parties, we propose to dispose of the writ petition finally, as purely a legal question is involved. 5. We have heard Sri Upadhyaya, learned counsel for the petitioner, and Sri Vinod Rastogi learned additional chief standing counsel for the respondent, at the admission stage. Having heard learned counsel for the parties, we propose to dispose of the writ petition finally, as purely a legal question is involved. 5. The question for consideration is : whether the notices (annexures "1" and "2" to the writ petition) and the directions issued by the Inspecting Assistant Commissioner under section 144A of the Act (annexure "6" to the writ petition) are legally sustainable ? Both the notices issued by the Income-tax Officer and the directions given by the Inspecting Assistant Commissioner revolve round the question whether the minor beneficiaries of the two trusts represented by the trustees in the firm have become fullfledged partners in the firm. It is admitted that the two trusts are represented by one trustee each of the trust in the partnership and that the beneficiaries of both the trusts are minors. The question is when the trusts are represented by one trustee each of the trust in the partnership, whether the minor beneficiaries become full-fledged partners in the firm. Under law, minors can be admitted only to the benefits of the partnership and they cannot be burdened with losses. In view of several authorities of the Supreme Court, it is no longer a doubtful proposition of law that a karta can represent his Hindu undivided family in a firm and likewise a trustee can represent the trust in a firm. So far as representative partners are concerned, the legal position is that they have a dual capacity : qua the firm, a karta representing Hindu undivided family is a partner in the individual capacity, but qua the strangers, i.e., qua the members of the Hindu undivided family, he is a partner in a representative capacity representing the interest of the members of the Hindu undivided family in the firm. Similarly, a trustee of the trust is a member in his individual capacity in a firm, but qua strangers, i.e. the beneficiaries of the trust, he remains a representative partner. So far as the firm is concerned, when the accounting is done at the end of the year, the profits are allocated to each partner according to his share ratio in the profits and losses. So far as the firm is concerned, when the accounting is done at the end of the year, the profits are allocated to each partner according to his share ratio in the profits and losses. The question for consideration is whether any legal provision is violated at the stage of distributing the profits amongst the members of the Hindu undivided family or amongst the beneficiaries of the trust and whether the partnership, otherwise legally and genuinely constituted, will be rendered illegal. The question is whether the assessing authority is entitled to go behind the partnership deed. If this power is not possessed by the assessing authority, then it will be immaterial as to how the profits allocated to a partner at the end of the year are distributed amongst the members of the Hindu undivided families or the beneficiaries of the trusts. If the assessing authority is legally required to confine himself to the terms and conditions of the partnership deed and to the fact whether the firm so constituted genuinely remained in operation during the previous year, then certainly, on account of violation of any legal provisions at the stage of distributing the profits allocated to a partner amongst the members of the Hindu undivided family or the beneficiaries of a trust inter se, no firm could be rendered ungenuine or illegal. 6. In Agarwal and Co. v. CIT, 1970 77 ITR 10, their Lordships adverting to CIT v. Bagyalakshmi and Co., 1965 55 ITR 660, inter alia, summarised the legal position thus (p. 17) : "From these decisions it follows that for the purpose of finding out as to who are all partners of a firm, one has only to look to the partnership deed and not to go behind it." Similarly, in CIT v. Sir Hukumchand Mannalal, 1970 78 ITR 18, the Supreme Court, considering several cases, held on page 21 : "It is now settled law that in considering an application for registration of a firm, the Income-tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests; ..." 7. In Bagyalakshmi and Co., [1965]55ITR660(SC), the Supreme Court observed or, page 664 : "A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. In Bagyalakshmi and Co., [1965]55ITR660(SC), the Supreme Court observed or, page 664 : "A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases, he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents cannot enforce their rights against the other partners nor can the other partners do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be." 8. To the extent of the delineated portion, this authority is no longer good law in view of the Explanation to section 185(1)(b) of the Act rendering a firm having a benamidar (as partner) as ungenuine. From these authorities, it is clear that to determine the question whether a partnership is genuine or not, an assessing authority has to confine himself only to the partnership agreement and he cannot go behind the partnership and it is not relevant for him to see what is the arrangement between the representative partner and the members whom he represents in the Hindu undivided family or the beneficiaries in the trust. The ingredients of a genuine partnership are : (1) there must be more than one partner; (2) they must be major; (3) there must be consideration and (4) there must be mutual agency and a partner should not be a benamidar. The conditions sine-qua-non for a genuine partnership are not to be tested by the fact as to how the profit accruing to a partnership is to be distributed amongst the members of the Hindu undivided family or beneficiaries of the trust. We have carefully gone through the partnership deed of the petitioner. The conditions sine-qua-non for a genuine partnership are not to be tested by the fact as to how the profit accruing to a partnership is to be distributed amongst the members of the Hindu undivided family or beneficiaries of the trust. We have carefully gone through the partnership deed of the petitioner. It shows that there are 12 partners in all, including four representative partners : two representing their Hindu undivided families and the remaining two representing the trusts. Clause 4 says that the fixed capital of the partners will be mutually decided by them and no interest shall be paid thereon. Clause 5 of the deed lays down the share ratio in profits/losses of the partners. It shows that the losses will be shared in the same proportion as profits. Clause 8 of the deed says that each partner shall attend to the business of the firm honestly and diligently. From these clauses, it is manifest that every partner was a working partner and there was consideration as each one of them was to contribute capital, which was to be decided by them mutually. The notices (annexures "1" and "2") and the directions (annexure "6") do not hint that the partnership as constituted Under the aforesaid deed was not in existence during the previous year. If the assessing authority cannot go behind the partnership and if he is not concerned with the manner in which profits acquired by a representative partner will be shared by the persons whom he represented, then it is wholly irrelevant to consider that the profits of the two partners representing the trusts will be shared by the minor beneficiaries. Sharing of profits by minor beneficiaries will not make them full-fledged partners in the firm. Qua the firm, the two trustees representing their trust are partners in their personal capacity and they are representatives qua the beneficiaries only. As a member of the Hindu undivided family, though entitled to share profits accruing to the karta, does not become a member in the firm and only the karta remains a partner in his personal capacity qua the firm; similarly, a trustee though represents a trust, but remains a partner in his personal capacity qua the firm and the beneficiaries, be they major or minor, cannot become, and claim to be, partners in the firm by virtue of their representative trustee becoming a partner in the firm. 9. We do not see any force in the contention of the respondent that the firm made a device in admitting the minor beneficiaries as full-fledged partners in the firm. In no case can the minor beneficiaries be said to be partners of the firm, though they are entitled to share profits accruing to the trustees-representative partners in the firm. This being the legal position, the stand of the Department that the firm does not deserve the status of a registered firm, that the firm is not genuine and that substantive assessment has to be made in the status of an association of persons, cannot be sustained and if that be so, both the notices issued under sections 186 and 148 of the Act and the directions given by the Inspecting Assistant Commissioner under section 144A of the Act, being annexures "1", "2" and "6", respectively, are liable to be quashed. 10. A few words more about the notices (annexures "1" and "2"). So far as the notice, annexure "1", is concerned, the respondent has conceded in paragraph 8 of the counter-affidavit that the notice issued under section 186 (1) is invalid. Otherwise also, notice for cancellation under section 186 postulates existence of registration. In the instant case, the firm applied in Form No. 11A for registration, as there was a change in the constitution during the assessment year 1986-87. The firm having claimed fresh registration in Form No. 11A, the question of cancelling registration under section 186 could not arise. However, it is averred in paragraph 8 of the counter-affidavit that the notice can be corrected under section 292B and that may be read as having been given under section 185(1)(b) of the Act, as registration can be refused under that provision. As there is no notice under section 185(1)(b), there is no need for us to go into the validity thereof and that can be considered as and when a notice under that provision is issued and the validity thereof is challenged. 11. Then comes the notice issued under section 148 of the Act, calling upon the firm to file a return in the status of an association of persons. 11. Then comes the notice issued under section 148 of the Act, calling upon the firm to file a return in the status of an association of persons. We do not see any wisdom in issuing this notice, because the firm had already filed a return in the status of a registered firm and, if the Income-tax Officer, holds a view otherwise, then he can assess the firm in whatever status he considered to be appropriate on the facts of the case. 12. Sri Rastogi has relied on S. P. Gramophone Co. v. CIT, 1986 9 ECR 28 in which the Supreme Court took the view that the concept of a firm being valid in law is distinct from its factual genuineness and for the purpose of granting registration under the Income-tax Act, both the aspects are relevant and must be present : one without the other will be insufficient. In short, the view of the Supreme Court was that even if a firm is valid in law, registration can be refused if the firm is not genuine, which is entirely a factual position. In the instant case, no facts have been stated either by the Income-tax Officer in the notices (annexures "1" and "2") or by the Inspecting Assistant Commissioner in the directions (annexure "6") indicating that factually the petitioner-firm as constituted was not in existence during the assessment year 1986-87. The position would have been different had the respondents pointed out facts showing that the firm did not function factually as per the constitution given in the partnership deed. Also, SRI Rastogi relied on Ratanchand Darbarilal v. CIT, 1985 155 ITR 720. This authority sets out conditions essential for a firm claiming registration. It is not pointed out as to which of the essential conditions is missing in the instant case. Therefore, both the authorities are misplaced. Ordinarily, we do not exercise our extraordinary jurisdiction under article 226 of the Constitution in such cases, inasmuch as, against the orders of the Income-tax Officer, the petitioner would have had the statutory remedy of appeal. Sri Upadhyaya urges that in the instant case, the directions being given by the Inspecting Assistant Commissioner under section 144A of the Act are being challenged and there being no appeal or other remedy against that, that could be challenged only in a writ petition. Sri Upadhyaya urges that in the instant case, the directions being given by the Inspecting Assistant Commissioner under section 144A of the Act are being challenged and there being no appeal or other remedy against that, that could be challenged only in a writ petition. We, on the facts and circumstances of this case, do not agree with the submission either. The Inspecting Assistant Commissioner has not taken any new stand, but the view which he took that the minor beneficiaries had become full-fledged partners in the firm by a colourful device resorted to by the firm, was already held by the Income-tax Officer and, therefore, the latter issued notices under sections 186 and 148 of the Act before the petitioner invoked the jurisdiction of the Inspecting Assistant Commissioner under section 144A of the Act. Sri Upadhyaya rightly pointed out that the Inspecting Assistant Commissioner confirmed the view of the Income-tax Officer By confirmation, no new cause of action arises and no writ petition can lie against the order confirming the view of the Income-tax Officer, but, in substance, the grievance of the petitioner is against the notices being issued by the Income-tax Officer and against the orders to be passed by the Income-tax Officer pursuant to such notices, statutory remedy of appeal is available. But the facts emerging from the case being clear and the legal position as viewed by the respondents being patently erroneous, we are inclined to exercise our extraordinary jurisdiction in this case. 13. For the above reasons, the writ petition succeeds and is allowed. The notices (annexures "1" and "2" to the writ petition) and the directions of the Inspecting Assistant Commissioner as contained in annexure "6" to the writ petition are quashed. Respondent No. 2 is directed to grant registration to the petitioner for the assessment year 1986-87 and complete the assessment proceedings for that year in the status of a registered firm.