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TMI Blog2004 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... corded any specific finding that the omission by some of the partners to sign the declaration under section 184(7) of the Act on Form No. 12 is a defect within the meaning of section 185(3). In view of the conclusion arrived at on question No. 1, it is not necessary to go into question No. 2. In this view of the matter, the reference is answered accordingly. - - - - - Dated:- 18-8-2004 - Judge(s) : R. K. AGARWAL., K. N. OJHA. JUDGMENT The judgment of the court was delivered by R. K. Agarwal J.- The Income-tax Appellate Tribunal, Allahabad, has referred the following questions of law under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for opinion to this court: "1. Whether, on the facts and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Income-tax Officer took the view that under section 185(3), the omission to sign Form No. 12 was not covered. He also took the view that in any case, the omission could be made good by February 28,1980, i.e., within one month of the service of the notice on the assessee but not afterwards. Accordingly, he rejected the assessee's application and took its status as that of an unregistered firm. The assessee being aggrieved, came up in appeal before the Appellate Assistant Commissioner. It was contended on behalf of the assessee that the Income-tax Officer should not have ignored the declaration filed by the assessee on October 3,1980, and that the delay in filing the revised Form No. 12 should have been condoned. It was explained that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration. It also noticed that those partners had retired from the firm with effect from September 21, 1979, and that the notice dated January 25, 1980, also did not specify any time during which the defects were to be removed by the assessee. Accordingly, it held that the Appellate Assistant Commissioner was quite justified in taking the view that the assessee was prevented by a sufficient cause, from filing the revised declaration in time. In the result, the appeal filed by the Department was dismissed. We have heard Sri A. N. Mahajan, learned standing counsel for the Revenue. Nobody has put in appearance on behalf of the respondent-assessee. Learned counsel for the Revenue submitted that Form No. 12 filed by the respondent-assessee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctify the defect within a period of one month from the date of such intimation and if the defect is not rectified within that period, the assessing authority shall, by an order in writing, declare that the registration granted to the firm shall not have effect for the relevant assessment year. However, we find that under clause (ii) of the proviso to sub-section (7) of section 184 of the Act, the assessing authority has been empowered to allow a firm to furnish a declaration for continuation of registration at any time before the assessment is made where he is satisfied that the firm was prevented by sufficient cause from furnishing the declaration within the time allowed under subsection (1) of section 139 of the Act. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling it within the period prescribed by sub-sections (1) and (2) of section 139. There is also power on the part of the Income-tax Officer to condone the delay in filing the declaration for the first time if there was sufficient cause for doing so. In the case of the declaration being defective, sub-section (3) of section 185 requires the Income-tax Officer to intimate the firm about the existence of the defect and the deed for its rectification within a period of one month. As contrasted with sub-section (7) of section 184, there is no power to condone the delay available under sub-section (2) or sub-section (3) of section 185." In this background the Madras High Court held that under sub-section (3) of section 185 of the Act, the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e removed by the assessee. Accordingly, we hold that the Appellate Assistant Commissioner was quite justified in taking the view that the assessee was prevented by a sufficient cause from filing the revised declaration in time." From a reading of the aforesaid order, it is clear that the Tribunal has not recorded any specific finding that the omission by some of the partners to sign the declaration under section 184(7) of the Act on Form No. 12 is a defect within the meaning of section 185(3) of the Act. In view of the conclusion arrived at on question No. 1, it is not necessary to go into question No. 2. In this view of the matter, the reference is answered accordingly. However, the parties shall bear their own costs. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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