9911796707
TMI Blog1977 (6) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounting year is the financial year. it filed a declaration in form No.12 on15th Sep, 1971signed by the following three partners : (1) Shri Ram Nath (2) Shri Keshav Saran (3) Shri Santhosh Kumar On Shri Mahesh Kumar Agarwal had been admitted to the benefit of this partnership. His date of birth was25th Jan, 1953. Hence he had attained majority on25th Jan, 1971i.e. within the relevant previous year. An agreement was also entered into by a deed executed on25th Jan, 1971, the contracting parties being the three partners mentioned above and M.K. Agarwal. the Income-tax Officer has recorded that the sum and substance of the said agreement was that M.K. Agarwal elected to become a full fledged partner in the assessee firm from25th Jan 1971. One of the clauses in the assessee firm from25th Jan 1971. Provided as under: "... And whereas The Parties to this Deed have agreed amongst themselves to treat this agreement binding upon themselves as if they have executed a fresh partnership Deed and further the parties to this deed have decided to draft a New Partnership Deed in very near future preferably on 1st of Apr, 1971. It has also been agreed upon amongst the partners that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade certain additions to the income disclosed. He then proceeded to pass a separate order u/s. 184(4). In this order he referred very briefly to what he had stated on the question of registration in his order u/s. 143 (3) for this year and following the view expressed by him there held that the assessee failed to explain satisfactorily the delay of 1091 days in filing the application for registration form No.11-A. he therefore, refused to condone the delay and rejected the application Assistant out of the time. 5. The assessee filed two appeals, one was against the order u/s.184 and the other was against the order under s. 143 (3). In the appeal against the order u/s. 143 (3) one of the objection taken was regarding status adopted for the assessments The Appellate Assistant Commissioner dealt with this objection on merits. In his view, the Income-tax Officer had gone wrong in not condoning the delay in the submission of form No.11-A. He directed the Income-tax Officer to allow registration to the firm for this year for the following reasons briefly : (i) By " Instruments" of partnership what is meant is a document in the collective sense. It is not necessary that a deed of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the quantum appeal when registration had been refused for the reason that no satisfactory explanation was available for the delay in the filing of the application for the registration Shri. J.S. Kapoor, appearing for the Department submits that the Income-tax Officer s order u/s. 184(4) was not appeal at all. The Appellate Assistant Commissioner was not correct in law in adjudicating on the merits of the said order u/s 184(4) in disposing of the quantum appeal especially when a separate appeal from the order u/s 184(4) was pending before him. The decisions reported in 83 I.T.R. 854, 96 I.T.R. 711 and 99 I.T.R. 102 are referred to in this connection in support of the Income-tax Officer s order. It is stressed that M.K. Agarwal becoming a major a fresh deed of partnership should have been drawn up; that such a deed was in fact, executed on 1st Apr, 1971 and hence the Income-tax Officer was correct in holding that there was no partnership deed at all operative during the relevant accounting year. It is then pointed out that even the document of 25th Jan, 1971 was put in only on 6th July, 1973 and the application in form No. 11A itself came to be filed on 27th Dec, 1973 ; and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No. 11A also on 27th Dec, 1973 to be on the safe; that the Appellate Assistant Commissioner had thus validity condoned the delay and had granted registration to the assessee. 8. On a consideration of the submission before us and the material on record, we see no reason to interfere. The decisions cited for the Revenue did hot cover the point in issue here. In those decisions it Assistant held that was right of appeal against an order u/s 184(7) or from an order u/s 184(4). As against these decisions the assessee has cited the Gujarat High Court decision reported in 100 I.T.R. 660 which is to the contrary. But the issue before us is : can the A.A.C. adjudicate on refusal of registration in an appeal from an order u/s 143(3). Both of us have been parties to an order wherein we expressed the opinion that the A.A.C. adjudicate on refusal of registration in an appeal from an order u/s 143(3). Both of us have been parties to an order wherein we expressed the opinion that the A.A.C. did have this power (I.T.A. Nos. 2517 and 2518 of 1975-76 dated 5th Jan, 1977 in the case of ITO vs. M/s. West View Hotel, Ranikhet). This was followed by the Tribunal in its order in I.T.A. No.944 (Del) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an appeal from the assessment order and to canvass in that appeal the correctness of the status so determined." Thus, in our view, the Appellate Assistant Commissioner acted validly in entertaining the assessee s objection to be assessed as an unregistered firm and in disposing of the objection on merits. In this view of the matter, we see no infirmity in the order of the Appellate Assistant Commissioner on this aspect of the law. 9. The Income-tax Officer s conclusion is that there was " no proper deed of partnership during the accounting year." The Appellate Assistant Commissioner has referred to the decision in the case of Commissioner of Income-tax vs. R. Dwarkadas Co.(5) in this regard. That was a case where registration was sought on the basis of an original partnership deed plus an endorsement thereon and a subsequent document of ratification by one of the partners, who had been minor earlier in the partnership. The Appellate Assistant Commissioner has referred to the fact of this case briefly (and has noted the observation of the court reported at page 289) in directing registration to be granted to the assessee firm. The court took note not only the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence an application in Form No. 12 would be sufficient. On6th July, 1973it filed a copy of the document of25th Jan, 1971. The covering letter dated6th July, 1973to the Income-tax Officer also indicated that in the assessee s view there had been no change in the constitution. But the Income-tax Officer brought to the assessee s notice a different point of view. The assessee took care to file an application in Form No. 11 A also in Dec, 1973. A specific point made for the assessee before us was that the case was not taken up after July, 1973, for discussion and that the assessee filed Form No.11 A on its own on27th Dec, 1973. This claim was not disputed before us. In this setting of facts and in the light of the observations of the Andhra Pradesh High Court we are unable to say that Appellate Assistant Commissioner erred in condoning the delay. I.T.A. No. 2960 ( Del ) of 1974-75: 11. The Income-tax Officer refused to condone the delay filing the registration application in Form No. 11A by an order u/s 184(4). The assessee appealed against such refusal. The Appellate Assistant Commissioner allowed the appeal after referring to his order on the appeal from the Income-tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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