MATHEW AND MATHEW Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal, Cochin Bench, has referred the following questions for the opinion of this court under Section 256(1) of the Income-tax Act:

(2.) THE assessee is a firm constituted during the accounting year ending on March 31, 1974, and was granted registration for the assessment year 1974-75, the first year of assessment of the firm. THE assessee, on January 21, 1975, filed a declaration in Form No. 12 praying for the continuation of registration for the assessment year 1975-76. THE declaration was defective in that it was filed before the closing of the relevant accounting year ending on March 31, 1975. THE Income-tax Officer rejected the declaration as invalid and declined to grant continuation of registration to the firm. In appeal at the instance of the assessee, the Appellate Assistant Commissioner found that there was no change in the constitution of the firm during the relevant accounting period and in the view that he took that it was not proper to decline the continuance of registration on a purely technical ground that the declaration had been filed a few days prior to the ending of the accounting year, directed the Income-tax Officer to make a fresh assessment treating the assessee as a registered firm. In appeal, at the instance of the Revenue, the Tribunal, following the decision of the Gujarat High Court in CIT v. Trinity Traders [1974] 97 ITR 81, held that the declaration submitted before the end of the accounting year is not a valid declaration and in the absence of a valid declaration, the assessee is not entitled to continuance of registration under Section 184(7) of the Income-tax Act. THE alternative plea on behalf of the assessee that an opportunity for rectification of the defect in the declaration should have been granted was also rejected in the view that the Tribunal took that the declaration submitted before time is not a declaration at all in law.

(3.) THE declaration furnished in the present case is defective as it does not relate to the whole of the accounting period and the assessee is entitled to an opportunity under Sub-section (3) of Section 185 for rectification of the defect.