9911796707
TMI Blog2000 (5) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... firm carrying on business since last several years and it is evidenced by Deed of Partnership, which Deed of Partnership was filed along with the return of income and a certified copy thereof was also filed during the course of assessment proceedings. 3. That merely because the certified copy of Deed of Partnership was not furnished along with the return of income by itself, could not constitute a valid ground for making an assessment in the status of AOP though undisputedly, certified copy of the Partnership Deed was filed in the course of assessment proceedings. 4. That the Learned Commissioner of Income-tax (Appeals) has failed to appreciate that the provisions of section 184(2) and cannot be regarded as mandatory and absolute in nature so as to disentitle the claim of firm, if merely the certified copy of the deed of partnership was not filed along with the return." 2. Facts concerning the matter, to be stated succinctly, are that in terms of a partnership deed dated2-4-1992, a firm, constituted by nine partners, came into existence w.e.f.1-4-1992. Its first previous year ended on 31-31993. If filed its return for the assessment year 1993-94 on30-11-1993along with a photo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory to file the certified copy of the instrument of partnership along with the return itself. Since this had not been done, he upheld the Assessing Officer's action in taking the assessee's status as that of and "Association of Persons". The assessee is aggrieved. 3.1 Before us, the ld. counsel for the assessee, while referring to the facts of the case, firstly submitted that it was not in dispute that an uncertified copy of the partnership deed was filed along with the return and that a certified copy had been furnished before the Assessing Officer during the course of assessment proceedings, copies placed at pages 27 to 34 of the paper book. He then drew our attention to the written submission made before the ld. CIT(A), copy placed at pages 64-71 of the paper book. The arguments taken in the grounds of appeal were reiterated. Our attention was invited to the decision of the ITAT, Delhi Bench 'D' in the case of Mrs. Sudha Sharma v. ITO [1993] 44 ITD 351, rendered in the context of section 80HHC of the Act, holding that filing of Accountant's certificate along with the return though statutory, belongs to the area of procedure and hence that condition for the grant of exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ningless. The ld. D.R. also submitted that the judicial decisions referred to by the assessee were in the context of provisions relating, to "deductions" or "exemption" which are to be liberally construed whereas the registration provisions require strict compliance. He submitted that the case of the assessee was clearly hit by the provisions of section 185 of the Income-tax Act. 5. We have given our utmost consideration to the facts and circumstances of the case, the material to which our attention was invited and the rival submissions. There are several provisions in the Income-tax Act providing for filing of certain documents or evidence "along with return", as is in effect the requirement of section 184(2) of the IT Act on the question whether a statute is mandatory or directory, the Bombay High Court in the case of Shivanand Electronics relied upon by the assessee, has laid down a very important proposition. It would be relevant to extract below the head note of the decision at pages 63 and 64 :--- "It is well settled that the question whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e modification. In short, the sub-head for sections 184 and 185 which was "registration of firm" was replaced by the sub-head "assessment as a firm". This had become necessary because by the amended provisions, the distinction between a registered and unregistered firm as per the pre-amended provisions, had been removed. As per the amended provision of section 184, the requisite conditions for assessment as a firm are as under :--- (i) The partnership is evidenced by an instrument [section 184(1)(i)]. This condition is identical with the condition as prescribed in pre 1993 section 184(1)(i). (ii) The individual shares of the partners are specified in the instrument [section 184(1)(ii)]. This condition is a reproduction of section 184(1)(ii) of pre 1993 section. (iii) A certified copy of the instrument of partnership shall accompany the return of income of the firm of the previous year relevant to the assessment year 1993-94 or any subsequent assessment year, in respect of which assessment as a firm is first sought [section 184(2)]. Thereafter, assessment as a firm will be continued to be made so long as constitution of the firm remains unchanged. Whenever there is a change in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares specified therein. This document is relevant for the purposes of assessment as a firm. Therefore, in our considered opinion, if the certified copy of the instrument is available before the Assessing Officer when he sits down for framing the assessment on merits, the object of the legislature is achieved because it is at that. stage that the compliance of the requirements of section 184(2) is to be ascertained. If that was so, the requirement of the certified copy accompanying the return does not seem to be of such a compelling nature that it may lead to denial of the status of a firm in cases where compliance of the requirement of the provision is made before the completion of the assessment and the 'uncertified' and 'certified' copies are found to be identical. Doing so would be taking a too technical view of the legal requirement. 6.2 It is well settled that in interpreting the law, one of the factors to be taken into account is the purpose for which the law has been laid down. The words of a statute take their colour from the object behind it. The object of section 184(2) is to ensure that only the property constituted firms are assessed as firms and as long as this objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory requirement was directory and not obligatory or compulsory. The mere use of the word 'shall' does not make the provision mandatory. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur AIR 1965 SC 895, the Supreme Court has observed : "The purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." 6.4 No doubt, the word used in section 184(2) is "shall" accompany the return but as has been observed in the decisions referred to above and held by the Calcutta High Court in the case of Rai Bahadur Bissesswarlal Motilal Malwasie's Trust relied upon by the assessee, the construction of the expression "shal" depends on the particular provision in which the direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otillal Malwasie Trust, documents placed on record with or even without covering letter, with the intention to remove only omission or wrong in the return cannot be ignored simply because a revised return was not furnished unless it is shown that the purpose of the Act is not satisfied. 7. Inthe present case, it is not disputed that the return filed by the assessee was accompanied by an uncertified Photostat copy of the instrument of partnership and a certified copy was made available at the time of assessment. In view of the foregoing discussion we hold that the provision about the certified copy of the instrument accompanying the return of' income is directory in nature and its substantial compliance, as is there in assessee's case, would suffice for assessment of the assessee as a firm. Accordingly, we direct the Assessing Officer to assess the assessee as a "firm". 8. Inview of the above finding the alternative plea of the assessee remains only of an academic interest. We would, however, point out that there is no force in this plea because as per the provisions of section 185, (he assessment, has to be completed in the status of AOP if the required conditions are not satis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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