9911796707
TMI Blog2008 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents. JUDGMENT This appeal has been filed by the Revenue against the judgment of the learned Tribunal dated 17.8.2004. The appeal was admitted on 17.11.2005, by framing the following substantial question of law:- "Whether in the facts and circumstances of the case, the Tribunal was justified in affirming order passed by CIT (Appeals) setting aside the order passed by the Assessing Officer under Section 185(5) refusing to grant registration to the respondent-firm and treating the assessee firm as URF?" The necessary facts are, that the assessing officer passed the order annexure/1, under Sec. 185(5) of the I.T. Act, 1961 refusing to grant registration to the firm for the assessment year 1991-1992, and has ordered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that the Assessing Officer, in the assessment order, passed under Sec. 144, has found, that the assessee had not fully complied with the notice, sent to it, by the Income Tax Officer, and it has been found, that there is a difference between non compliance, and not proper compliance. It has been found, that if the assessee had complied with, and the ITO was not satisfied with the compliance, it cannot be said that there was non compliance of the notice, then it has been noticed, that in para 2 of the assessment order, the ITO has observed, that the notice was not fully complied with, however, the partners of the assessee, alongwith the AR appeared on the subsequent dates, and that the assessee had filed the partnership deed and other re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for the A.Y." Thus, from the reading of this provision, it is clear that it is only an enabling provision, vesting in the assessing officer, power to refuse to register the firm, for the assessment year, in the event of eventualities, contemplated by this provision coming into existence. But then, it is required to be grasped, that the provision is not mandatory, so as not to leave any discretion with the assessing officer, not to refuse registration. Obviously, therefore, mere existence of the eventualities contemplated by Sec. 185(5) have the effect only of conferring a power on the assessing officer, to refuse registration, but then, a large question still survives, as to whether in a given case, the assessing officer should exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessment. It is not in dispute that the assessee failed to comply with the notice issued under section 142(1) and 143(2) and, therefore, the Income-tax Officer had the discretion to refuse the registration on that ground alone". On that basis, it is submitted, that since in the present case, the assessee had failed to comply with the notice under Sec. 142 (1), the order was rightly passed by the assessing officer. In our view, this would not be the correct reading of the judgment, for the simple reason, that the above submission is not in line with what has been held in the above judgment, that existence of these eventualities, confers jurisdiction on the assessing officer, to proceed under Sec. 185 (5) but then, this judgment, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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