9911796707
TMI Blog1991 (7) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 20,000 and assessed the firm at Rs. 50,310. At the foot of the assessment order he passed a separate order under s. 185 of the Act in which he held that the partnership was "in genuine" and as such was treated as URF. Against the order treating the assessee as URF by order under s. 185, it filed appeal before the Dy. CIT(A) and submitted that the order treating the assessee firm as unregistered firm was erroneous. It was submitted that the firm has been treated as URF solely on the basis of statement (letter dt. 23rd July, 1979) of one of the partners but that letter has been submitted under coercion and should not have formed basis for holding that the firm was not genuine. It was submitted that since the firm had already been grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (SC), Addl. CIT vs. Packo Engg. Pvt. Ltd. (1982) 30 CTR (Bom) 232 : (1983) 143 ITR 415 (Bom), Joseph Kuruvila vs. CIT (1989) 77 CTR (Ker) 192 : (1989) 179 ITR 139 (Ker), Bal Erectors vs. CIT (1989) 180 ITR 625 (P H), and Prabhudayal Amichand vs. CIT (1989) 180 ITR 84 (MP). It was also submitted that the error which the ITO has committed was a procedural error and as such the ITO's order should not have been cancelled but should have been merely set aside. 4. I have considered the rival submissions and facts on record. In the present case, the ITO has passed order under s. 185 of the Act which is as follows: "Order under s. 185. The statements of Shri Roopaben, the partner of the firm and the other partner Shri M.N. Shah were take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valid order of cancellation of registration. Without such approval he has no jurisdiction to pass an order of cancellation of registration. The ITO had never in mind the provisions of s. 186 of the Act. He consciously acted in accordance with the provisions of s. 185 of the Act. Consequently, those decisions would not apply in which it has been held that mere mention of wrong section would not invalidate the proceedings. If there are two provisions of law which are different from each other and if the concerned authority consciously takes action under one of these two provisions, then it cannot be said that his action should be construed as to have been taken under the provisions of the other section. If there is procedural error in a va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision would not be applicable to the facts of our case. In that case, the proceedings were validly initiated under s. 271(1)(c) of the Act and in the course of validly initiated proceedings the ITO committed error in not obtaining approval of IAC. Since the initiation itself was valid any error which occurred subsequent to initiation was held to be a procedural error. In the present case, if the ITO had initiated proceedings under s. 186 of the Act and then in the course of that proceedings had omitted to obtain approval of the IAC, the ratio of said decision would have been applicable. However, in the present case, the ITO initiated proceedings under s. 185 of the Act. He reopened the assessment under s. 147 of the Act and made an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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