9911796707
TMI Blog1986 (3) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was originally refused by the ITO on the ground that the application for registration filed by the assessee was very late and that there was no sufficient and reasonable cause for the delay. The assessee carried the matter in appeal to the AAC and pointed out to him that the application for registration as also the partnership deed was actually filed by the appellant firm on 21st March, 1977 though the acknowledgement of the same was not traceable with the assessee. It was further pointed out that when the ITO took up the case for hearing in his camp at Burhanpur, the file before the ITO did carry the original partnership as also the application for registration but the assessment could not be finalised since the return of income was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid register was maintained by him in the normal course of its profession. Alternatively, it was pleaded that the assessee had filed Form No. 11 and partnership deed before the ITO before completion of the assessment on 10th Dec., 1981 and, therefore, in the peculiar circumstances of the case the ITO ought to have exercised his discretion in condoning the delay. An affidavit from Shri Damodardas S/o Ranchhoddas, assistant of the counsel, Shri Mashruwla was also filed before the AAC in support of the aforesaid plea. After examining the above evidence, the ld. AAC felt that the matter deserved reconsideration. He therefore, restored the matter back to the ITO with, inter alia, the following observation: "In the light of the facts narrated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in names the word 'Kela' being common." 3. The ld. AAC further directed the ITO to examine the entries in the order sheet maintained in the course of assessment proceedings with a view to find out whether the case was adjourned in Burhanpur camp for tracing out the return of income or whether the application for registration, etc., was on the record of the ITO when the case came up for hearing before him in the said camp. In paragraph 6 of his order the ld. AAC observed as under: "It would not be fair in the peculiar circumstances of the case to reject the claim of the appellant only on the ground that it was not in a position to produce necessary acknowledgement. In case the circumstantial evidence from the scrutiny of inward register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the ITO as noted earlier. 5. The assessee appealed against the aforesaid order of the ITO to the AAC, who confirmed the order of the ITO after repeating the facts given by the ITO in his order. The assessee challenges the correctness of the aforesaid findings of the authorities below. 6. It is the contention of the ld. counsel for the assessee that the partnership deed had been duly executed on 16th Dec., 1976 and had been registered with the Registrar of Firms on 19th May, 1979. There was, therefore, no rational justification for the assessee not having filed the application for registration along with the partnership deed on the due date as stated by the assessee. The register of the counsel showing the tendering of the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee including the affidavit of Shri Kapadia and as such we should not interfere with the order of the AAC which was otherwise passed on proper appreciation of facts and evidence on record. 8. We have given due consideration to the facts and the rival submissions. There is no doubt that in the present case there is no direct evidence to prove positively that the application for registration had been filed by the assessee as alleged. The matter has, therefore, to be decided on circumstantial evidence. For the purpose of determination of the present appeal, however, we are of the opinion that it is not necessary to give a positive finding on this subject on the basis of circumstantial evidence because it is not there was no application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The delay in the filing of the application on 10th Feb., 1981 is thus directly explained by the conduct of the assessee as explained above. He laboured under the genuine belief that the application was already on record. He was made wiser on or about 10th Feb., 1981 that the said application was not on record. He immediately filed the application in question on 10th Feb., 1981. In view of this sequence of events and the bona fide conviction under which the assessee acted all through, the delay, in question, should have been condoned by the ITO and the AAC. Insofar as they did not do so and insofar as their judgment was heavily coloured by the absence of any positive evidence to prove the filing of the application on 21st March, 1977, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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