9911796707
TMI Blog1973 (12) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... levant accounting period being Samvat year 2022. It is an admitted position that the accounting period ended on 12th November, 1966. For assessment year 1967-68 the assessee filed his return on August 19, 1968, along with a declaration under section 184(7) of the Act. However, this declaration was not signed by two of its partners, namely, Sajanben Zaverilal and Divyakant Zaverilal. The said declaration was, therefore, defective. However, on April 16, 1969, the assessee filed a revised return along with the new declaration which was made on June 13, 1966, and signed by all the partners including the above referred two partners, Sajanben Zaverilal and Divyakant Zaverilal. It is this declaration which is the subject-matter of dispute in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the assessee to show cause why the order of the Income-tax Officer treating the assessee as a registered firm should not be cancelled under section 263 of the Act in so far as it was prejudicial to the interests of the revenue. The assessee, however, did not appear before the Commissioner but submitted a written reply. The explanation of the assessee was that though it is true that the declaration was made on June 13, 1966, it is not true that it was meant for the assessment year 1966-67. According to the assessee this declaration was made for the assessment year in question, i.e., 1967-68 but it could not be filed with the original return, because, at that time, it was not traceable. The Commissioner was not satisfied with the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration in Form No. 12 stated to have been signed by all the partners on June 13, 1966, could be considered as a valid declaration for the purpose of section 184(7) in respect of the assessment year 1967-68 ? " On the face of it, the question which is framed above does not bring out the real controversy between the parties because, as stated above, so far as the findings of facts are concerned, the Tribunal has recorded all these findings in favour of the assessee and in this reference these findings cannot be disturbed. However, the decision of the Tribunal is challenged on behalf of the revenue on a question of law which is not very apparent from the question referred to us. The point of law is that even if it is found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rument of partnership on the basis of which the registration was granted ; and (ii) the firm furnishes, along with its return of income for the assessment year concerned, a declaration to that effect, in the prescribed form and verified in the prescribed manner. This proviso shows that even if a firm is granted registration for an assessment year the said registration would be good for the subsequent assessment year only if it furnishes the declaration to the effect that there was no change in the constitution of the firm or shares of the partners as evidenced by an instrument of partnership, on the basis of which registration was originally granted. Under the circumstances, making of a declaration, contemplated by the above quoted provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to make a declaration that there has been no change in its constitution, or in the shares of the partners up to the last date of the previous year relevant to the assessment year. From these provisions it is quite evident that the declaration which is contemplated by section 184(7) of the Act is the declaration that up to the last date of the accounting period the constitution of the firm and the shares of the partners have remained unchanged. The question, therefore, is whether any such declaration could have been validly made by any of the partners of the firm before the accounting period was over. In this case the declaration in question was made by the assessee on 13th June, 1966. The accounting period was over on 12th November, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the original registration was given. Therefore, the right of a firm to continue its registration is made conditional upon a declaration of the type mentioned above. If no such declaration is made then it results in non-compliance with the provisions of the section itself. Under the circumstances the declaration which is made by the assessee in the middle of the accounting period is found to be no declaration at all. In other words, the Income-tax Officer concerned has carried out the assessment treating the assessee as a registered firm without any declaration. It is found that the Tribunal has not considered this aspect even though the Additional Commissioner who has taken action under section 263 of the Act has sufficiently dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
