COMMISSIONER OF INCOME TAX Vs. INDIA SEA FOODS

JUDGEMENT

(1.) THE Revenue is the petitioner herein. THE respondent is a firm. It consists of 10 partners. We are concerned with the assessment year 1979-80. THE assessee was granted registration for the assessment year 1978-79. For the year 1979-80, admittedly, two partners did not sign in Form No. 12 which is necessary to be filed under Section 184(7) of the Income-tax Act, 1961, read with Rules 22(5) and 24 of the Income-tax Rules, 1962, for continuance of registration. THE Income-tax Officer also held that no authorisation or power of attorney was also filed before him. On these premises, the declaration filed in Form No. 12 was held to be not in order to enable the assessee to continue the benefit of registration under the Act. THE firm was assessed in the status of an "unregistered" firm. In appeal, the Commissioner of Income-tax (Appeals) accepted the plea of the assessee that there was only some defect in the form filed before the officer (Form No. 12) and so the assessee should be given an opportunity to rectify the defects THE Income-tax Officer was also directed to grant the assessee continuation of registration. In second appeal by the Revenue, the Income-tax Appellate Tribunal set aside the order and remitted the matter to the Income-tax Officer directing him to return Form No. 12 to the assessee and permit the assessee to resubmit the same after rectifying the defect wherein two persons did not sign in the application form. THE order of the Appellate Tribunal is dated December 19, 1985. THEreafter, the Revenue filed an application under Section 256(1) of the Income-tax Act to refer the two questions of law formulated in para 7 of the original petition for the decision of this court. It was declined by the Appellate Tribunal by order dated September 1, 1986. THEreafter, the Revenue has filed this original petition under Section 256(2) of the Act praying that the Appellate Tribunal may be directed to refer the two questions of law formulated in para 7 of the original petition for the decision of this court.

(2.) WE heard counsel for the Revenue as also counsel for the respondent/assessee. It is a moot question as to whether the absence of the signatures of the two partners in Form No. 12 application can be said to be a defect only. Counsel for the Revenue contended that it cannot be called a defect it is total non-compliance with the mandatory provisions of law and it was urged that if the assessee should have the benefit or privilege of continuation of registration, the mandate contained in the statutory provisions should be literally complied with. In the absence of strict compliance with statutory requirements, it should be taken that there was no application or form before the Income-tax Officer to be considered under Section 184(7) of the Income-tax Act. Counsel for the Revenue placed considerable reliance on Section 184(7) of the Income-tax Act, 1961, read with Rules 24 and 22(5) of the Income-tax Rules and submitted that the application shall be signed personally and it is mandatory. Counsel for the respondent/assessee submitted that what is involved in this case is only continuance of registration and this is not a case where the genuineness of the firm or the validity of the original partnership deed itself is in question. So, the only question being as to whether the respondent/assessee is entitled to continuance of registration, the Appellate Tribunal was justified in taking the view that non-signing of Form No. 12 by two of the partners is only a defect and an opportunity was validly afforded by the Appellate Tribunal to rectify the defect and re-present the application. Reference was also made to the circular of the Central Board of Direct Taxes dated June 26, 1965, which was extracted in the order of the Appellate Tribunal.

(3.) THE original petition is allowed.