9911796707
TMI Blog1981 (4) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... spose of them together by a combined order. In the beginning, we take-up the appeals of the Revenue and the Cross-objections of the assessee relating to the asst. yrs. 1973-74 and 1974-75. The facts are that the firm M/s Sureshchand Rameschandra was constituted by the deed dt. 16th July, 1969 as follows: . Name Ratio. 1. Shri Mohanlal 25 per cent 2. Shri Ranglal 25 per cent 3. Shri Bhanwarlal 25 per cent 4. Shri Sureshchand (Minor) 121/2 per cent 5. Shri Rameshchandra (Minor) 12 per cent The registration was granted to the said firm for the asst. yr. 1970-71. The assessee, therefore, claimed continuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare the losses, it was contended that execution of a fresh partnership deed was not necessary and that the firm continued as such with the only difference that Sh.Sureshchand became major. On these facts the assessee contended before the AAC that there was nothing to show that the firm became in genuine during the previous year ending Nov., 1972 and, therefore, the ITO was not justified in cancelling the registration under s. 186 for the years under appeal. The AAC accepted the contention of the assessee and he consequently directed the ITO to grant continuation of registration for both the years under appeal. 3. Aggrieved, the Revenue has come up in appeal to the Tribunal against the combined order of the AAC and the assessee had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that the Board itself was of the view that on the facts and circumstances covered by the instructions, which are analogous to the facts and circumstances of the instant case, there is no ingenuine firm for the purpose of s.. 186 and the registration could not be cancelled on such facts. What Sh. Chaudhary argues is that there was change in the constitution during the years under appeal, inasmuch as, the share ratio was changed. We do not agree with the argument of the Revenue. Shri Sureshchand clearly deposed in the affidavit that by virtue of agreement, he was not required to share the losses and the losses of the firm were to be shared only by the remaining partners. This being so, there was no change in the share ratio and that cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht in arguing that the firm become ingenuine during the previous year ending Nov., 1972 relevant to the asst. yr. 1973-74. Cancellation of registration under s. 186 is, therefore, wholly unwarranted and the AAC was right in cancelling the cancellation order of the ITO and in directing him to granting continuation of registration for both the years under appeal. 4. Thus, the appeals of the Revenue for the asst. yrs. 1973-74 and 1974-75 fail and are dismissed and the cross-objections of the assessee by which no relief has been sought by the assessee, are dismissed as being infructuous. 5. Then we take up the appeals of the assessee relating to the consecutive asst. yrs. 1975-76 to 1977-78 and the stay petitions. At the very out-set, Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975-76 on 26th May, 1975."...... The AAC found in para 3 as follows: "with the filing of application for registration alongwith the partnership deed dt. 27th Feb., 1974 it was clear that a new deed of partnership had come into operation w.e.f. 27th Feb., 1974 and the old partnership deed dt. 16th July, 1969 had become inoperative. The question of granting continuation of registration, therefore, did not arise". 7. There being no good reason for condoning delay in filing of Form No. 11-A and the deed dt. 27th Feb., 1974 in the opinion of the AAC, he refused to direct the ITO either to grant continuation of registration or grant registration. Relying on his order pertaining to the asst. yr. 1975-76, the ITO refused to grant continuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed dt. 16th July, 1969 became inoperative. This is why, he observed in Para 3 of his order pertaining to the asst. yr. 1975-76. The question of granting continuation of registration, therefore, did not arise. The AAC forgot to remember that the deed dt. 27th Feb., 1974 was simply relied on by the assessee in alternative. On these facts, the duty of the AAC was to concentrate himself on the primary contention of the assessee. He should have considered the case of the assessee and given a clear finding why continuation of registration could not be granted on the basis of Form No. 12. He attached undue importance to the fact that the assessee filed the deed dt. 27th Feb., 1974. Mere filing of this deed will not destroy the primary contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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