COMMISSIONER OF INCOME TAX Vs. DINESHCHANDRA INDUSTRIES

JUDGEMENT

(1.) THE following two questions have been referred to us for our opinion :

(2.) THESE two questions arise in the following circumstances : The assessee is a firm consisting of four partners. It made a return of its total income of 30th June, 1964, along with a declaration in Form No. 12 for renewal of the registration under section 184(7). It appears that the assessee further filed an application for registration in Form No. 11 on July 7, 1968, along with a copy of the a partnership deed. The Income -tax Officer concerned considered only the application made in Form No. 11 which was filed for purposes of obtaining registration. Since the original partnership deed was not annexed with the said form, the Income -tax Officer called upon the assessee to show cause why registration should not be refused. On behalf of the assessee, it was contended before the Income -tax Officer that the assessee had filed registration application in time through its income -tax practitioner to whom the work was entrusted : but as the assessee was not aware of the technicalities since the partners had migrated to India from Aden, the assessee had made an application for obtaining the registration in Form No. 11. The Income -tax Officer, however, in the absence of any evidence, refused to condone delay in filing the application and treated the firm as unregistered firm. The assessee, therefore, carried the matter in appeal before the Appellate Assistant Commissioner. The appeal was described as one under section 143 (3) read with section 184(4) of the Income -tax Act, 1961. In the course of hearing of the appeal, it was clarified before the Appellate Assistant Commissioner that the assessee had filed an application for registration for the earlier assessment year 1963 -64 and, therefore, a declaration for continuation of registration under section 184(7) was filed along with the return for the assessment year under reference. The assessee came to know subsequently that its tax consultant had not filed application for registration for the earlier year, and, therefore, the assessee filed fresh application for registration. The Appellate Assistant Commissioner asked the assessee to substantiate its application by producing an affidavit from the tax consultant concerned. No affidavit was filed by the tax consultant with the result that the Appellate Assistant Commissioner confirmed the order of the Income -tax Officer.

(3.) A short contention which has been urged by Mr. Kaji, the learned advocate appearing on behalf of the revenue, is that no appeal is competent against the order of the Income -tax Officer refusing to condone delay under section 184(4) of the Income -tax Act, 1961, and, therefore, the Tribunal was not justified in reaching the conclusion that such an appeal was a competent appeal. In any case, it was urged on behalf of the revenue by Mr. Kaji that the Circular bearing No. 3 -P (XXV -22) of 1964, dated the 29th July, 1964, by the Central Board of Direct Taxes, New Delhi, on which the Tribunal relied for purposes of its finding that the Income -tax Officer did not give an opportunity to the assessee concerned for purposes of making a proper application according to the departmental practice indicated in the aforesaid circular was also not justified, inasmuch as the circular applied only those cases where application for registration by a firm for any assessment year was pending and a declaration for continuation of such registration under section 184(7) of the Income -tax Act, 1961, was sought for. Since it is an admitted position here that there was no registration application made on behalf of the assessee -firm in the previous assessment years, there was no question of application of the circular in question.