(1.) AT the instance of the assessee reference of the following two questions of law was compelled by this court under Section 256(2) of the I.T. Act, 1961. The Income-tax Appellate Tribunal, Cochin Bench, had accordingly, sent up its statement of the case and formulated the following questions of law for our opinion, namely :
(2.) THE assessment year with which we are concerned is 1969-70, that is, the year ending March 31, 1969. THE assessee is a firm. From April 1, 1968, to September 30, 1968, it consisted of three partners. On and from October 1, 1968, one of them retired, but three new partners joined the firm. THEre was thus a change in the constitution of the firm during the accounting year. THE assessee claimed that it had applied for fresh registration on December 31, 1968. It was the case of the I.T. department that this application had not been received by the ITO. On October 13, 1969, the representative of the assessee furnished to the ITO a copy of the application said to have been filed on December 31, 1968. After investigation, the officer found that the assessee had not made any such application on December 31, 1968, within the accounting year. So he passed an order purporting to be under Section 185 of the Act refusing registration. THE assessee appealed against the order to the AAC. That officer found that the assessee had, on October 13, 1969, filed an application for registration and that the ITO had entertained that application, though it was made after the end of the previous year. In the circumstances, the AAC was of the view that the ITO's order was one under Section 185(1)(b) of the I.T. Act, 1961. Such an order could be passed only if the officer is satisfied that there was no genuine firm in existence. THE officer had not investigated this aspect of the case. THErefore, the AAC set aside the order of the ITO, and remanded the proceedings to the officer for fresh decision after examination of the question ef genuineness of the firm. THE department appealed to the Appellate Tribunal. It was argued on its behalf that the ITO's order was under Section 184(4) of the Act of 1961 and that no appeal against such an order would lie under the provisions of the Act. THErefore, the AAC's order was illegal and without jurisdiction. THE Tribunal rejected this argument of the department, holding that the order in question was not one either under Section 184(4) or tinder Section 185(1)(b). THE Tribunal took the view that the ITO in refusing registration had only decided the status of the assessee as part of the assessment proceedings and that the assessee had the right to question that order before the AAC even in the appeal filed by the assessee against the assessment. But as the officer had chosen to pass a separate order on this matter, the Tribunal was of the view that the separate appeal filed was maintainable and competent. It was then argued by the departmental representative that the assessee had not applied for fresh registration before the expiry of the accounting year. This was countered by the assessee, contending that it had applied in the accounting year itself by making an application on December 31, 1968. On an examination of the facts and the circumstances, the Tribunal came to the conclusion that the assessee had not established that it had so made an application during the previous year. It was then the assessee's contention that the officer should have considered the copy of the application for registration sent by the assessee's representative on October 13, 1969, as itself an application. This was met by the Tribunal on the ground that no such request had been made on behalf of the assessee, and that there was no explanation on the part of the assessee for the delay in filing that application. THE Tribunal, accordingly, recorded that the assessment on the assessee in the status of an unregistered firm was correct. THE Tribunal, therefore, allowed the department's appeal. It is against the said order of the Tribunal that the questions of law have been referred.