9911796707
TMI Blog1979 (10) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the evidence on assessment records and the enquiries made by the ITO in the course of assessment proceedings, the ld., CIT grossly erred in holding that the order of the ITO is erroneous and prejudicial to the interest of the Revenue. (3) The impugned order is without jurisdiction, without material and contrary to the material on record. (4) The impugned order is bad in law having been passed without giving opportunity of being heard." Ground No. 4 has not been passed. 3. The facts briefly are that the assessee firm consisting of 19 partners came into existence on 1st April, 1975 for carrying business in country liquor with Head Officer at Gol Bazar, Sriganganagar and 14 branches. The partnership deed was drawn up on 26th Nov., 1975. In the course of the previous year, on 6th June, 1975, one of the partners Sri Rajkumar died and the information of this event was duly given to the excise authorities from whom the assessee firm had taken the licence. The remaining partners continued to carry on the business and the revised partnership deed was executed on 20th July, 1975. Application for registration in Form No. 11 alongwith the original partnership deed was filed on 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration is Form No.11 was filed on 29th March, 1975 along with the partnership deed in original. ITO, Sri Ranka urged, felt satisfied about the genuineness of the firm after examining all the facts and the circumstances of the case. In such a situation, referring to Supreme Court decisions in ShivKasi Match Exporting Co. (1), Agwarlal Co., vs. CIT(2), and K.D. Kamath Co., vs. CIT(3), Shri Ranka pleaded, registration could not be refused. He said further that the ld. CIT completely ignored the material which was already on the record. He referred specifically to the assessee's letters addressed to the ITO dt. 16th Aug., 1976 and 28th Aug., 1976 in which the circumstances under which the assessee firm came into existence had been stated. In the letter dt 16th Aug., 1976 it had been stated that the licence granted by the Department showing the names of the partner to whom the Thekha was given is enclosed herewith. In the letter dt. 28th Aug., 1976 it was mentioned in para 2 that the assessee firm gave the information of the death of Sri. Rajkumar, partner, to the Excise Department and a certificate from the Deptt., to this effect is enclosed herewith. It may be mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. Commr., set aside the ITO's order on the only ground that the licence had been granted to M/s. Ramsarandas Co., without making enquiry about the constitution of this entity from the excise authorities and, therefore, grant of registration to the assessee was not proper. Sri Ranka urged that the Commr's order was obviously incorrect on facts and it was also bad in law. The ld. Deptl. Representative, on the other hand, relied upon the orders of the ld. Commr. 6. We have considered the facts and the rival submissions. At the very outset, we must say that the power under s. 263 given to the Commr. to revise an order passed by the ITO is a quasi-judicial power. It, therefore, follows that in making an order under this section, the Commr., must pass a speaking order giving reasons. This view has been taken in the Supreme Court decision in the case of Dwarkanath vs. ITO(4), and Allahabad High Court decision in the case of CIT vs. Late Shri L. Lal (6). Further, as held in the case of Bhagat Raj vs. Union of India(7), the Commr., must satisfy himself that the order passed by the ITO is not only erroneous but also prejudicial to the Revenue. The words "If he consider" postulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt. 16th Aug., 1978 in which the circumstances under which the assessee came into existence had been stated and certain information as required by the ITO with regard to the claim for registration was filed. The relevant portion of this letter reads as follows: "The assessee firm is constituted by 19 partners. The partnership deed was executed on 26th day of May, 1975 and was filed in the office on 29th March, 1976 with Registration application on Form No. 11. One of the partners. Sri Rajkumar expired on 6th June, 1975 and a second partnership deed was executed on 20th day of July, 1975 and this deed was filed in the office on 31st day of March, 1976 together with the application on Form No. 11 A. The licence granted by the Department showing the names of the partners to whom the Theka was given is enclosed herewith. Regarding the credit in the accounts of the partners enclosed herewith please find the statement giving full details of the investments and GIR No. Or Permanent account No. Also enclosed herewith please find the following: 1. Certificate from the Excise Department regarding the guaranteed amount, supply of wine and forfeiture of Excise Duty of Rs. 6,83,250. Alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot hold that the ld. Commr. was not right in his conclusion that the order passed by the ITO was erroneous and also prejudicial to the Revenue. In fact as stated in the foregoing, the ld. Commr. merely took cognizance of the certificate dt. 19th Aug., 1976 saying that the licence was granted to Shri Ramsarandas Co., but overlooked other material on the record which showed that, in fact, the licence had been given to M/s. Ramsarandas Partners consisting of 19 partners. The intimation of the proceedings under s. 263 was thus misconceived. 9. We also agree with the ld. Counsel for the assessee that the order passed by the Commr., was bad in law. The Commr., held the ITO's order under s. 185 to be erroneous and also prejudicial to the Revenue merely because in the certificate dt 19th Aug., 1976 it had been said that the licence for the period 1st April, 1975 to 31st March, 1976 was given to Sri Ramsarandas Co. There was nothing on the record to show that Sri Ramsarandas Co., was not the same person as the assessee firm with 19 partners. The record, on the other hand, showed clearly that the licence had actually been issued to the assessee firm with 19 partners and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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