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Dhanpat Pitamberlal Patni Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 229 of 1977
Judge
Reported in(1982)28CTR(MP)286; [1983]144ITR874(MP)
ActsIncome Tax Act, 1961 - Sections 184(4), 184(7), 184(8), 185(1) and 246
AppellantDhanpat Pitamberlal Patni
RespondentCommissioner of Income-tax
Appellant AdvocateB.L. Nema, Adv.
Respondent AdvocateB.K. Rawat, Adv.
Excerpt:
.....effect of the proviso on filing a declaration when there is no change or application for fresh registration when there is change along with the return for the assessment year concerned ? (4) whether, on the facts and circumstances of the case, an appeal lies or not against the non-condonation of delay by the income-tax officer in filing the application for fresh registration ?' 2. the reference relates to the assessment year 1968-69. the relevant account year was from diwali 1967 to diwali 1968. the assessee-firmwas reconstituted on 3rd november, 1967. the application for registration wa 3. as there was a change in the constitution of the firm, the assessee could not apply under section 184(7) for continuation of registration and it had to apply for fresh registration under..........of law :'(1) whether, in the facts and circumstances of the case, the application filed for fresh registration under section 184(8) due to change in the constitution of the firm in form no. 11a under rule 22(4)(ii) on june 30, 1969, along with the return for the assessment year concerned 1969-70 was well within time or not ? (2) if within time, was the registration of the firm validly refused ? (3) whether sections 184(7} and 184(8) are inter-dependent and whether in effect both grant continuation of registration for the subsequent assessment year by saving the nullifying effect of the proviso on filing a declaration when there is no change or application for fresh registration when there is change along with the return for the assessment year concerned ? (4) whether, on the facts.....
Judgment:

G.P. Singh, C.J.

1. This is a reference made by the Income-tax Appellate Tribunal referring for our answer the following questions of law :

'(1) Whether, in the facts and circumstances of the case, the application filed for fresh registration Under Section 184(8) due to change in the constitution of the firm in Form No. 11A under Rule 22(4)(ii) on June 30, 1969, along with the return for the assessment year concerned 1969-70 was well within time or not ?

(2) If within time, was the registration of the firm validly refused ?

(3) Whether Sections 184(7} and 184(8) are inter-dependent and whether in effect both grant continuation of registration for the subsequent assessment year by saving the nullifying effect of the proviso on filing a declaration when there is no change or application for fresh registration when there is change along with the return for the assessment year concerned ?

(4) Whether, on the facts and circumstances of the case, an appeal lies or not against the non-condonation of delay by the Income-tax Officer in filing the application for fresh registration ?'

2. The reference relates to the assessment year 1968-69. The relevant account year was from Diwali 1967 to Diwali 1968. The assessee-firmwas reconstituted on 3rd November, 1967. The application for registration was made on 30th June, 1969. The ITO refused to condone the delay in filing the application and dismissed it. The AAC dismissed the appeal on the ground that no appeal lay against the order under Section 184(4). The Tribunal in further appeal held that the assessee had to apply for fresh registration under Section 184(4) read with Section 184(8). The Tribunal also held that no appeal lay against the refusal of the ITO to register the firm on the ground of limitation.

3. As there was a change in the constitution of the firm, the assessee could not apply under Section 184(7) for continuation of registration and it had to apply for fresh registration under Section 184(4) read with Section 184(8). The application was filed after the close of the account year and was clearly barred by time. It could be entertained within time only if it was found that there was sufficient cause for not making the application before the end of the account year. As regards the question whether an order rejecting an application under Section 184(4) on the ground of limitation is appealable under Section 246(j), we are of opinion that' such an order is also an order by which the ITO refuses to register the firm and falls within Section 185(1)(b) and is, therefore, appealable. The view we have taken is shared by the Gujarat, and the Punjab & Haryana High Courts (see CIT v. Dineshchandra Industries [1971] 100 ITR 660 and CIT v. Ben Chemical Industries . This view has been commended in the Law and Practice of Income Taxby Kanga and Palkhivala. The Madras and the Orissa High Courts have taken a different view (Chandmsekaran & Bros. v. CIT : [1974]96ITR711(Mad) and New Orissa Traders v. CIT : [1977]107ITR553(Orissa) . We respectfully differ from the view taken in these cases. We may also point out that in CIT v. Jabalpur Transport Development Co. (M.C.C. No. 3 of 1978, decided on 25th August, 1981-- : [1983]143ITR964(MP) ). we held that an order refusing continuation of registration under Section 184(7) is also appealable under Section 246(j). Our decision that an order under Section 184(4) dismissing an application for registration on the ground of limitation is also an order under Section 185(1)(b) and, therefore, appealable under Section 246(j) is in line with our previous decision.

4. For the reasons given above, we answer the questions as follows :

(1) The application was barred by time. It could, however, be entertained if sufficient cause was shown under the proviso to Section 184(4).

(2) In view of our answer to question No. (1), this question does not arise.

(3) Sections 184(7) and 184(8) are independent provisions.

(4) Appeal lay against the order of the ITO refusing to condonedelay and for that reason refusine to register the firm.

5. There will be no order as to costs of this reference.


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