9911796707
|
Home
Issues Involved:
1. Whether the right of appeal under section 246(c) of the I.T. Act, 1961, includes the status taken as an unregistered firm (U.R.F.) in the assessment order. Detailed Analysis: Issue 1: Right of Appeal under Section 246(c) and Status as Unregistered Firm Facts and Background: The assessee was treated as a registered firm up to the assessment year 1970-71. For the assessment year 1971-72, a declaration in Form No. 12 was submitted on July 31, 1971, along with the return. The ITO observed that no application for extension of time for filing the return, due on June 30, 1971, was filed, and thus took the status of the assessee as an unregistered firm. The assessee appealed to the AAC, who confirmed the assessment and held that the registration was not a matter of status, making the appeal on this point non-maintainable. The Tribunal upheld the AAC's decision, stating that the status could not be the subject of an appeal under section 246(c). Legal Analysis: The court had to determine whether an appeal regarding the status of an assessee as a registered or unregistered firm was maintainable under section 246(c). Section 2(31) of the Act defines a "person" inclusively, but not exhaustively, and includes various entities such as a firm, whether registered or unregistered. The court noted that the definition of "status" under the Act depends on the context in which it is used. The relevant provisions considered were: 1. Explanation to Section 246: This deals with the right of appeal and includes the phrase "status under which he is assessed." 2. Explanation 2 to Section 143: Effective from April 1, 1971, this defines "status" in relation to an assessee, including the classification of a firm as a registered or unregistered firm. The Tribunal's interpretation was that since section 2(31) does not distinguish between registered and unregistered firms, and the Explanation to section 246 does not mention this distinction, the matter of status should fall under clause (j) of section 246, which deals with orders related to registration of firms. Court's Conclusion: The court disagreed with the Tribunal, emphasizing that Explanation 2 to section 143, effective from April 1, 1971, clearly includes the classification of a firm as a registered or unregistered firm within the meaning of "status." The court held that the term "status" in section 246(c) should be interpreted to include this classification, making the appeal maintainable. The court also addressed the principle of generalia specialibus non derogant, stating that section 246(c) provides a substantive right of appeal against the status under which an assessee is assessed. This right is not overridden by the specific provisions of section 246(j), which apply in cases where no assessment order is passed simultaneously with the decision on the status. Judgment: The court concluded that the right of appeal under section 246(c) includes the status taken as an unregistered firm in the assessment order. The Tribunal's decision was set aside, and the matter was remanded to the AAC for disposal of the appeal on merits, including the status of the assessee. Case Law Reference: - The court distinguished its decision from the Orissa High Court's ruling in Nilamani Ghosh v. CIT [1977] 106 ITR 281, noting that the Orissa case did not consider Explanation 2 to section 143, which was not in force at the time. - The court agreed with the Allahabad High Court's decision in ITO v. Vinod Krishna Som Prakash [1979] 117 ITR 594, which recognized the right of appeal under section 246(c) concerning the status of a firm as registered or unregistered, considering Explanation 2 to section 143. Final Holding: The court answered the referred question in the affirmative, in favor of the assessee and against the Revenue. The AAC was directed to dispose of the appeal on merits, including the status of the assessee as an unregistered firm. No order as to costs was made.
|
