9911796707
TMI Blog1982 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... n 185 (1)(a) of the Income-tax Act, 1961 on 30th January, 1973, granting registration to the firm. For and from the assessment year 1973-74 to 1976-77, the assessee complied with the necessary requirements and the ITO allowed continuation of registration to this firm. For the assessment year 1977-78, an application in form No. 12 was filed on 18th April, 1977. This form was signed by partners Sher Singh and Ram Kishan and on it was impressed the left hand thumb impression of partner Munshi Ram. For the assessment year 1978-79, original Form No. 12 was filed on 23rd May, 1978 signed by Ram Kishan and Sher Singh with the left hand thumb impression of Munshi Ram on it. 3. During the course of assessment proceedings and consideration of continuation of registration to the firm, the ITO questioned the thumb impression of Munshi Ram in Form No. 12 filed on 18th April, 1977 for the assessment year 1977-78 and the signature of Shri Sher Singh in Form No. 12 filed on 23rd May, 1978 for the 1978-79. It appears that the ITO, B. Ward, Karnal, who was seized of this matter forwarded the documents relating to the assessment year 1977-78 to the Finger Print Bureau, CID Headquarters, Madhuvan f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79. His statement recorded by the ITO appears at page 19 of the paper book. In examination so conducted by the ITO the Examiner of Questioned Documents averred that he had examined and compared the disputed thumb impression of Munshi Ram in Form No. 12 for the assessment years 1977-78 and 1978-79 and was of the opinion that the thumb prints in Form No. 12 (1978-79) were of the same person whose specimen thumb impression is marked in serial No. 1. He further opined that no opinion can be given on thumb prints marked Q-3 on Form No. 12 (1977-78) because the impression is blurred and smudged. In other words, he confirmed in examination on solemn affirmation what had been given in writing by him as his opinion. 6. After this the ITO in para 6 of his impugned order dated 19th April, 1979 for the assessment year 1977-78 expressed his own opinion. But before we go further we would like to record that during the course of these proceedings before the ITO the ITO made his order on 19th April, 1979. The assessee had filed fresh Form No. 12 for each of the assessment year under appeal on 18th April, 1979. 7. The ITO expressed his opinion that the opinion of the expert Shri A.M. Jha was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 earlier filed if there was any defect, may be considered to have been removed by a properly signed form and continuation of registration may be granted. However, the ITO held that the view that "if the original Form No. 12 was not signed by all the partners personally, such a defect cannot be removed later on by filing another Form No 12.etc." The continuation of registration was thus refused. 9. For the assessment year 1978-79, the ITO doubted the signatures of partner Sher Singh on Form No. 12 filed for this year. He, therefore compared the signatures of Sher Singh, partner as appearing on the copy of partnership deed dated 13th April, 1971 and on the application for registration in Form No. 11 filed for the assessment year 1972-73 with the specimen signatures of Sher Singh obtained by the ITO by recording a statement of his on 1st December, 1978. He referred the signatures to the Government Examiner of Questioned Documents at Simla to verify whether the signatures appearing on these documents were personally written by Shri Sher Singh. The Government Examiner of Questioned Documents, Simla sent his opinion No. AX-156/78 dated 11th January, 1979 and confirmed the ITO's opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner himself and there was no foreging and as such the opinion of the assessee's expert should be accepted. The learned counsel for the assessee also argued before the ITO that after all if the signatures could not tally then there could be only a defect in Form No. 12 and that should be allowed to be removed by giving an opportunity as required under section 185 (3) of the Income-tax Act. The ratio of the judgment of the A.P. High Court in (1977) 110 ITR 313 (AP) at 321 was brought to the notice of the ITO. 12. The ITO gave his comments on the detailed reasons given by the assessee's expert Shri A.M. Jha. He came to the conclusion that the opinion given by the assessee's expert was not reliable inter alia because he could not furnish any documentary evidence in support of his contention that his opinion was relied on in about 250 cases in different Courts. In nut shell, the ITO accepted the opinion of Government Examiner as against the opinion of the assessee's expert that the Form No. 12 filed by the assessee was not valid in law. He did not allow the assessee even an opportunity under section 185(3) though the assessee specifically asked for it to amend the Form No 12 Not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue that rule 24 read with section 184(7) clearly established that Form No. 12 has to be personally signed by each of the partners. Since the ITO found after due enquiry that for the assessment year 1977-78, partner Munshi Ram had not put his thumb impression personally and that for the assessment year 1978-79, partner Sher Singh had not signed personally the application Form No. 12 filed by the partners for each assessment year was, therefore, not in accordance with law and such a defect could not be removed at all by affording an opportunity to the assessee. 16. It was contended that taking into consideration the ratio of the judgment of the Supreme Court in the case of Rao Bahadur Ravulu Suba Rao v. Commissioner (1956) 30 ITR 163 (SC), it is to be appreciated that the signatures which are prescribed by the rules are that of the partner himself and they are not to be complied with by the agents signing on his behalf. It was contended that the Punjab and Haryana High Court has held in the case of Nand Lal Sohan Lal (1977) 110 ITR 170 (P H)(FB) that even if there are two reasonable views possible on the interpretation of a statute, the view which is more reasonable has to be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee's expert could not give details of any of the cases in which his opinion had been accepted by the Courts against the opinion of the Govt. Examiner, the assessee had also pointed out to the ITO during the course of these proceedings that in so far as the Government Examiner (Simla) is concerned, he could not show to him that his opinion has been accepted by any of the Courts. Therefore, the evidence itself shows that there is only a doubt about the thumb impression and the signatures mentioned above. 19. In view of this position and taking into consideration the expert opinion, we find that there was only a defect in each of the applications for the assessment years 1977-78 and 1978-79 and that defect was based upon the doubt in the mind of the ITO. Such a doubt could not take the place of evidence and, therefore, original applications could be considered and should have been considered for continuation of registration. However, the assessee's counsel before the ITO took a precautionary measure and placed on the file of the ITO duplicate Form No. 12 for each of the assessment years signed by each of the partners personally and in view of the provisions of section 185(3), th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
