COMMISSIONER OF INCOME TAX Vs. NAGARMAL BISHESHAR LAL

JUDGEMENT

(1.) At the instance of the Commissioner of Income-tax, Allahabad, the Income-tax Appellate Tribunal, B-Bench, Allahabad, has referred the following question of law for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the order rejecting the application for registration on the ground that it was belated was an order under Section 185 of the Income-tax Act, 1961, and was, therefore, appealable ?"

(2.) The necessary facts leading to the above question are as follows : For the assessment year 1974-75, the assessee-firm made a claim for registration under Section 185 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). The accounting year of the assessee ended on August 5, 1973, The assessee, however, filed an application in Forms Nos. 11 and 11A on September 14, 1973, along with the original partnership deed. Since the claim for registration was filed by the assessee after the close of the accounting period, the Income-tax Officer considered the same to be belated. On a show-cause notice being issued, the assessee explained that one of its partners, Sri Nagarrnal, had suddenly died on August 3, 1973, and, therefore, the firm had to be dissolved on August 5, 1973. Otherwise, the accounting period adopted by the assessee would have ended on October 8, 1973. It was contended by the assessee that it was because of this sudden contingency that the firm had to be dissolved and, consequently, the accounting year of the assessee had to come to a close. It was further contended that had the death of Sri Nagarmal not taken place, the application for registration would have been in time. The Income-tax Officer, however, held that the application for registration being not filed in time, the assessee was not entitled to registration. He, accordingly, refused to register the firm after rejecting the application for condonation of delay in filing the said application for registration.

(3.) Aggrieved against the aforesaid order passed by the Income-tax Officer, the assessee filed an appeal before the Appellate Assistant Commissioner. It was claimed by the assessee that there was a valid explanation for the delay in filing the application for registration and that the Income-tax Officer was in error in refusing registration to the assessee-firm. It was contended on behalf of the assessee that so far as the genuineness of the firm was concerned, the same was not only genuine but the Income-tax Officer in the succeeding year has already granted registration to the firm for the subsequent year. The Appellate Assistant Commissioner held that the reasons given by the Income-tax Officer for refusing the claim of the assessee for registration were not sustainable more so because the firm had been allowed registration for the subsequent year. He held that the delay in presentation of the application ought to have been condoned. He, accordingly, allowed the appeal of the assessee and directed the Income-tax Officer to grant registration to the assessee-firm for the year in dispute. The Income-tax Officer, however, challenged the aforesaid order of the Appellate Assistant Commissioner before the Income-tax Appellate Tribunal on the ground that the Appellate Assistant Commissioner had erred in directing the Income-tax Officer to grant registration to the assessee-firm. The Department was of the view that the application for registration filed by the assessee was belated and that the Income-tax Officer had rightly refused to condone the delay. It was further contended on behalf of the Department before the Tribunal that the order refusing to condone the delay was an order passed under Section 184(4) of the Act against which no appeal had been provided and, therefore, the first appellate authority was not justified in entertaining the appeal of the assessee challenging the aforesaid order passed by the Income-tax Officer refusing to grant registration to the assessee-firm in the very first year of the business of the assessee. Before the Tribunal, the assessee supported the order of the Appellate Assistant Commissioner and claimed that the delay was fully explained and the order passed by the Appellate Assistant Commissioner was perfectly justified on the facts and circumstances of the case and that, under the law, an appeal lay to the Appellate Assistant Commissioner. The Tribunal, after consideration of the rival submissions of the parties, found that the claim of the Department that no appeal lay against the order of the Income-tax Officer refusing to condone the delay under Section 184(4) of the Act was no doubt supported by a decision of the Madras High Court in the case of A. S. S. S. S. Chandrasekaran and Brothers [1974] 96 ITR 711 but it also noticed that the Gujarat High Court had, in a later decision in the case of Dineshchandra Industries [ 1975] 100 ITR 660, taken a contrary view. The Tribunal also felt that the view of the Gujarat High Court was supported by the ratio of the decision of the Supreme Court in the case of Mela Ram and Sons [1956] 29 ITR 607. Therefore, what the Tribunal held was that even a belated application for registration was an application in the eye of law and, when it was rejected on the ground of delay, the order rejecting such application was, in law, an order passed under Section 185 of the Act and, therefore, was clearly appealable. The Tribunal accordingly confirmed the order passed by the Appellate Assistant Commissioner and dismissed the appeal filed by the Department.