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TMI Blog1986 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... irst. In this case the assessee was granted original registration and for the assessment year 1982-83 it sought continuation of registration by filing Form No. 12. There were certain blanks in Form No. 12 and those blanks were pointed out in the Commissioner's order and so they need not be repeated here. Admittedly, Form No. 12 was signed by all the partners of the firm. However, the date put under the partners' signatures is 31-3-1982. The previous year relevant to the assessment year 1983-84 with which we are concerned in this appeal ended on 31-3-1982. Thus, the partners signed the declaration in Form No. 12 on the last day of the accounting year. According to the Commissioner such a form does not disclose a change in the constitution of the firm or the shares of the partners since the last day of the previous year relevant to the assessment year 1982-83 to be the last day of the previous year relevant to the assessment year 1982-83. Therefore, he felt that it was defective form which has no sanctity in the eye of law and grant of continuation of registration on the basis of such a form is erroneous and prejudicial to the interests of the revenue and, therefore, he had issued no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nakar in order to get over the difficulties which were previously used to be confronted by the assessee for getting benefit of continuation of registration under section 184(7), the Taxation Laws (Amendment) Act, 1970, was brought in with effect from 1-4-1971. Shri Ratnakar brought to our notice a portion of the commentary found in Sampath Iyengar's Law of Income-tax, Seventh edn., Vol. 4, revised by Justice S. Ranganathan, where the learned author opined as follows : "... The present sub-sections are as they were redrafted by the Taxation Laws (Amendment) Act, 1970, with effect from 1st April, 1971. Under the old sub-sections (2) and (3), there was a provision for rectification of defects only in an application for registration and none for rectification of defects in a declaration furnished by a registered firm under section 184(7), and for mere technical defects, a firm registered earlier could be assessed as an unregistered firm. In order to get over this difficulty, these sub-sections (2) and (3) were redrafted...." Differentiating the facts of the Gujarat High Court case he submitted that their Lordships of the Gujarat High Court were concerned for the assessment year 1967- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny or enquiry was contemplated within sub-sections (2) and (3) of section 185 these would have been redundant. It is the next contention of the revenue that the blanks left unfilled in the impugned Form No. 12 together with the fact that it was filed on the last day of the accounting year instead of on the completion of the accounting year would make the impugned Form No. 12 wholly invalid declaration under section 184(7) of the Act but not a defect for the rectification of which the said form should have been returned for resubmission after rectifying the defects. What are the defects within the ambit of sub-sections (2) and (3) of section 185 were also mentioned by the learned author in the same commentary noted above as follows: "Quite frequently, it happens that the formalities of an application for registration and the preliminaries therefor are not properly complied with. For instance, it may be that the signatures of all the partners are not affixed to the instrument of the partnership, or to the application for registration vide Form Nos. 11, 11A and 12. Or it may be that the particulars required in the columns of the said forms are not duly filled up, or the apportionment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the partners since the last day of the previous year relevant to the assessment year 19...-19... up to the last date of the previous year relevant to the assessment year 19...-19... or to the date (...19...) of dissolution of the firm;" 7. The question posed by Shri Ratnakar was : what is meant by the words 'prescribed form' and 'verified in the prescribed manner' came up for consideration even before the Supreme Court in a sales tax case in STO v. K.I. Abraham [1967] 20 STC 367. The Hon'ble Supreme Court in that case while stating about the extent of powers which can be conferred on the rule-making authorities held that delegation cannot be extended to the authorities to prescribe a time limit within which the declaration is to be filed by the registered dealer. In the head-note of the judgment the following is held: "The expression 'in the prescribed manner' occurring in section 8(4) of the Central Sales Tax Act, 1956, only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold and to which authority the form is to be furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is held the construction which would result in stultifying the benefit conferred by the statute should be avoided. 11. He also invited our attention to the advice given by the Hon'ble Supreme Court as to the approach to be adopted while interpreting and administering the provisions of law stated in Saroj Aggarwal v. CIT [1985] 156 ITR 497. It is held as follows : "...Facts should be viewed in natural perspective, having regard to the compulsion of the circumstances of a case. Whether it is possible to draw two inferences from the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee, it would be just and equitable to draw such inference in such a manner that would lead to equity and justice. Too hypertechnical or legalistic approach should be avoided in looking at a provision which must be equitably interpreted and justly administered. It is true that there must be succession by inheritance. But it is possible in a particular case without any express provision either in the deed or in writing to infer from the conduct of the parties that there was succession, and if such a view is possible in spite of the absence of an express prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is contended that the blanks filled in together with the fact that the form does not cover the whole of the accounting year would make the impugned form an invalid one and the argument that the deficiencies in the impugned form amount to defects which can be rectified under section 185(2) and (3) is not a valid argument. 14. Thus, we have heard both sides on the point. We are inclined to accept the arguments advanced on behalf of the assessee's counsel. Firstly, we hold from the facts and circumstances of the case that there is no reason to believe that after the partners of the assessee-firm signing the impugned Form No. 12 on 31-3-1982 there was possibility of change in the constitution of the assessee-firm or any such change came into being. We also hold that the particulars furnished in the impugned Form No. 12 clearly disclose that there was no change in the constitution or in the shareholding of the partners in the whole of the previous year relevant to the assessment year 1982-83. We are also of the opinion that if the ITO had any doubt in that regard he would have returned Form No. 12 pointing out the defects and calling upon the assessee to rectify the defects. We do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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