9911796707
TMI Blog1990 (7) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... riled. However, no evidence has been produced nor the time has been extended by the ITO. There is no sufficient justification for the delay of more than 2 years in filing form No. 12. Registration is not a general right. It is a mere privilege given to the firm in order to enable it to get the benefits of lower rates of tax. If a firm desires to take advantage of this privilege, it must confirm strictly to the requirements of the Act and Rules thereunder. Filing of the application for registration within the time allowed is one of the requirements. The assessee did not adhere to this. I am also satisfied that the firm was not prevented by sufficient cause from making the application within the prescribed time. The application for continuation of registration is therefore rejected." Against the order passed by the Income-tax Officer there was an appeal and the Appellate Assistant Commissioner directed the grant of registration stating that subject to other conditions being fulfilled the declaration seeking continuation of registration under section 184(7) could be filed in time before the assessment is made and in the present case though the ITO had mentioned that there was no satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically in exercise of his powers under section 185(1)(b) of the Act, the appeal filed by the assessee before the AAC was maintainable under section 246(j) of the Act. We have already adverted to annexure A order. It does not purport to have been passed under section 185(1)(b) of the Act. It does not refer to any provision in the Act at all. Therefore, the principles applied by this court in the three decisions mentioned above in the preceding paragraph are not attracted to the case on hand. In the result, we answer the question referred to us in the negative, that is to say, in favour of the Revenue and against the assessee. There will be no order as regards costs." The provisions of Sec. 246(1)(j) provided for an appeal against an order under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or s ub-section (5) of Section 185. The order of the ITO, which is the subject matter of consideration in the present case was clearly styled as " Order under section 185 ".The sub-sections of Section 185 are not referred to and since it has clearly been labelled as order under section 185, it has to be construed as an order passed under that section which would take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well-settled. See Pitamber Varjishat v. Dhondu Navlapa [1988] ILR 12 Bom. 486, 489." The well-established principles of law to which we have referred to each operates, in our view, within its own sphere. They are not contradictory and if any thing they are complimentary by describing the order as one passed under section 185, for the reasons stated by us, it become an appealable order under section 246(1)(j) having regard to the general principles of law which has been set out by the Kerala High Court in the case of Pushpaka Travels. It is only because the order has become appealable that the next stage arises, namely, the AAC being validly seized of jurisdiction to deciding the appeal. It is at this stage that it is the duty of the appellate authority to uphold the order with reference to that jurisdiction which confers validity upon it and not the jurisdiction which renders it nugatory. At this stage, therefore, it is necessary for us to examine the statutory provisions of the IT Act and to state that the ITO has exercised his powers under section 184(7) and the description by him as having exercised the powers under section 185 is wrong but does not render the order void bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to be seen is whether the explanation tendered gives a satisfactory reason for the delay or not. The reason put forth is that there was delay in preparation of statements and necessary particulars for filing the return of income. The reason put forth could be caused by a variety of factors. If further specific clarifications were considered necessary then the assessee should have been called upon to elucidate the reasons further. No clarification appears to have been sought from the assessee, but the conclusion was straightaway drawn that there was no sufficient justification for the delay. There is no material on record to suggest that the explanation put forth by the assessee that the delay occurred because time had to be taken for preparing statements and other necessary particulars was incorrect. At this stage, it would be relevant to set out the background in which the provisions on Section 184(7) were amended. The following is the history of how clause to the proviso to section 184(7) came to be introduced (reproduced from page 3886 of Volume 4 of the Law of Income-tax by Sampath Iyengar, 7th Edition) : " 1970. -- The aforesaid clause (ii) of the proviso to sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
