Satish Chandra, J.
1. The Income-tax Appellate Tribunal, Allahabad Bench, has submitted this statement of the case for the opinion of this court on the following question of law:
'Whether, on the facts and circumstances of the ease, the assessee-firm was entitled to registration under Section 26A of the Act and the relevant Rules under the Indian Income-tax Act, 1922 ?'
2. The question relates to the assessment year 1959-60. The assessee-firm consisting of two partners, namely, Rameshwar Nath and Mohan Lal, came into existence on 1st April, 1954. It was duly registered under Section 26A of the Act of 1922 for the assessment years 1953-54 to 1956-57. With effect from 1st April, 1956, a change came about in the constitution of the firm. Mohan Lal, one of the partners, who had an eight-annas share, incorporated his brother, Brijmohan Lal, as an additional partner in the firm. Thereafter, Mohan Lal and Brijmohan Lal each had a four annas share in the firm. The partners applied for registration by an application made on 26th December, 1959, for the assessment year 1959-60. The Income-tax Officer held that this was the first application for registration by a new firm. It was barred by time, and hence no registration was allowable. The assessee-firm took the matter in appeal. The Appellate Assistant Commissioner took the same view, namely, that the said application was the first application for registration and was barred by time. The explanation submitted on behalf of the assessee that the firm had given the registration application to Ram Bharose Lal, its accountant, who couldnot file the same with the Income-tax Officer, due to the serious illness of his wife, was not accepted, because there was no material in support of it. It was held that there was no sufficient cause for the delay in making the application. The appeal was dismissed.
3. The assessee then filed an appeal before the Appellate Tribunal. At this stage, he filed an affidavit of Ram Bharose Lal in support of the explanation that had been offered for the delay. The Tribunal accepted the plea of the assessee-firm that the events of 1956 did not make the firm a new one, and that the application made in December, 1959, was not the first application, and so, it was not governed by the rule of limitation laid down in Rule 2 of the Income-tax Rules. It was held that there was no limitation of time for making such an application. It was held that the departmental authorities were not justified in considering the application for registration as time-barred. The Tribunal then observed that even assuming that the above view was not correct, even then the firm had made out a case for the condonation of the delay, and the Income-tax Officer should have condoned the delay and granted registration. On these findings, the appeal was allowed, and it was directed that the assessee-firm will be allowed registration with all the consequent benefits thereunder.
4. At the instance of the Commissioner of Income-tax, the Tribunal has referred the question mentioned above for our opinion.
5. After the dismissal of the application under Section 66(1) of the Income-tax Act, the Commissioner moved another application before the Tribunal, praying that question No. 2 mentioned in the earlier application also should be referred to the High Court. The Tribunal had in its original order of reference stated that question No. 2 was covered by the question already referred to. It stuck to this opinion and rejected the application. Aggrieved, the Commissioner had moved an application under Section 66(4) of the Act, praying that the Tribunal be directed to refer the same questions to this court. Having heard learned counsel, we are satisfied that questions Nos. 1 and 3 mentioned in this application are clearly covered by the question referred to us. Question No. 2, namely, whether on the facts and in the circumstances of the case, the Tribunal was right in holding that there was sufficient cause for condoning the delay in filing the application for registration is also within the purview of the question which has been referred to us by the Tribunal. Under the circumstances, we deem it unnecessary to require another reference. The application under Section 66(4) is hence rejected.
6. On the question whether there was sufficient cause for the delay, the Tribunal has given a finding in favour of the assessee. According to it, in the circumstances of the case, the delay was liable to be condoned.Apparently, this finding is on a question of fact. We have to see whether it is contrary to law.
7. Before the Appellate Assistant Commissioner, the assessee had put forward an explanation that it had given the application for registration to its accountant, Ram Bharose Lal, for being filed before the Income-tax Officer, but he could not do so because of the serious illness of his wife. This explanation was rejected, because there was no material in support of it. Before the Tribunal, the assessee-firm filed an affidavit of Ram Bharose Lal, the accountant. This fact is mentioned in the order of the Tribunal. The Tribunal observed that in this particular case, the firm was otherwise genuine and no other defects either in the constitution of the firm or regarding the form of registration, etc., were pointed out by the departmental authorities. It held that the delay was liable to be condoned. Reading the order of the Tribunal as a whole, it is apparent that the Tribunal was aware of the affidavit filed in support of the explanation, and, in the light of other facts mentioned by it, it believed the explanation, and held that the delay should have been condoned. No counter-affidavit or other material was filed on behalf of the department to controvert the affidavit filed on behalf of the assessee. No grievance was expressed that the department had no opportunity of doing so. Under the circumstances, it can be taken that the Tribunal had applied its mind to the contents of the affidavit and believed it. In this situation, it cannot be said that there was no material before the Tribunal upon which it could come to the conclusion that there was sufficient cause for the delay.
8. On behalf of the revenue, our attention was invited to some decided cases laying down principles for adjudicating applications for condonation of delay under Section 5, Limitation Act. Those cases are distinguishable. Section 5, Limitation Act, governs civil litigation in adversary proceedings. By reason of delay, some right accrues or vests in the opposing litigant. That is not the case in a proceeding under Section 26A of the Income-tax Act. This provision requires registration with a view to screening out bogus firms. No right accrues to or vests in the department on failure of an assessee to get his firm registered within time. The purpose of Section 26A, is to enable the Income-tax Officer to see that the firm is genuine and that its constitution was proper. The question of delay in making an application for registration could not always be viewed in the light of those principles which are applicable to adversary proceedings like Section 5, Limitation Act.
9. It was urged on behalf of the revenue that the assessee had made no application for the condonation of the delay and had not made any such prayer even in the application for registration. That is true. But neither the Income-tax Act nor the Rules expressly require a separate writtenapplication or a written prayer for condonation of delay in making an application for registration.
10. It was also submitted that the Tribunal having expressed its opinion on the main question that the firm was not a new firm and the application for registration was not the first application, and so, was not 'governed by any period of limitation, was influenced by this finding while deciding the question whether the assessee had sufficient casue for the delay in making the application, A perusal of the order of the Tribunal does not lead to that conclusion. It has given its views on both the points argued before it. It is not possible to hold that the Tribunal's opinion on the matter of sufficient cause was coloured by its finding on the other question. In our opinion, the finding of fact on this question cannot be said to be vitiated by any error of law,
11. In this view, the other questions, namely, whether the firm became a new firm with effect from. 1st April, 1956, and whether the application for registration was the first application, are questions of mere academic importance, because even if these questions are decided in favour of the department and against the assesses, the result would be no different; because, even then, on the finding that the delay was liable to be condoned, the firm would be entited to registration, and the question referred to us will have to be answered against the department and in favour of the assessee. In this situation, we deem it unnecessary to discuss that point.
12. Our answer to the question referred is in the affirmative, against the department and in favour of the assessee. The assessee would be entitled to costs of this reference which is assessed at Rs. 200. The fee of the learned counsel for the department is also assessed at the same figure. We make no order as to costs of the application under Section 66(4) of the Act.