R.N. Misra, J.
1. At the instance of the revenue on an application made under Section 256(2) of the Income-tax Act, 1961 (hereafter referred to as ' the Act'), this court directed the Income-tax Appellate Tribunal, Cuttack Bench, to state a case and refer the following question for the opinion of the court :
'Whether, in tKe facts and circumstances of the case, the Tribunal was justified in holding that opportunity has to be provided for removal of defects in application for registration as contemplated in Sub-section (2) of Section 185 of the Act where the application itself was not filed in time and the assessee did not make any request for condonation of delay in filing the application under the proviso to Section 184(4) '
2. It may be pointed out that the Tribunal at the instance of the revenue on an application under Section 256(1) of the Act had referred a question also to this court for opinion, namely :
'Whether, on the facts and in the circumstances of the case, the Income-tax Officer should consider that the filing of a declaration in Form No. 12 was an application for registration which was not in order within the meaning of Section 185(2) read with Section 184(6) of the Income-tax Act, 1961 '
3. At the hearing, the assessee was not represented in spite of notice and learned standing counsel suggested that both the questions may be dealt with in a common order.
4. Assessee is a partnership firm which came into existence under a deed dated March 29, 1967. For the assessment year 1967-68, registration was granted to the firm. During the assessment year 1968-69, relating to the year ending March 31, 1968, one of the ten partners died and upon his death, his widow was admitted as a partner and a fresh deed was drawn up on March 30, 1968. For the assessment year 1968-69, the assessee filed a declaration in Form No. 12 as contemplated under Sub-section (7) of Section 184 of the Act. This declaration was signed by the previous partners as also the lady who had been newly admitted. The ITO granted renewal of registration while completing the assessment. The CIT in exercise of powers under Section 263 of the Act vacated the order of the ITO in the matter of grant of renewal of registration and directed fresh computation of the liability. Assessee thereupon appealed to the Tribunal and contended that even though filing of a declaration in Form No. 12 was irregular in view of the fact that there had been re-constitution of the firm, the ITO was bound to give an opportunity to the assessee to rectify that mistake and consequently cancellation of registration without giving such opportunity was unreasonable the revenue took the stand that registration conferred a benefit and the assessee was bound to satisfy the conditions prescribed by law which brought the benefit; and if there was a situation where the benefit was not available for non-compliance, no opportunity was necessary to be extended to the assessee under Sub-section (2) of Section 185 of the Act. The Tribunal took the view that the ITO was required to see whether the application was in the prescribed form and, therefore, he was bound to give an opportunity to the assessee to file an application in the prescribed form if the application before him was not in the prescribed form. The Tribunal, therefore, held that the CIT transgressed the principles of natural justice incorporated in Section 185(2) of the Act. The Tribunal accordingly directed the ITO to give an opportunity to the assessee for rectifying the defect before disposing of the application.
5. Section 184 of the Act provides for the making of an application for registration and lays down the conditions to be satisfied to-avail the benefit flowing out of registration. Rule 22 of the I.T. Rules requires that such application has to be made in accordance with the provisions of Sub-rules (2) to (5) and the application has to be made in Form No. 11, in cases of re-constitution of a firm taking place during the previous year before the date of the application, the application has to be made in Form No. 11A as provided by Sub-rule 2(ii) of Rule 22. Rule 24 prescribes for a declaration to be furnished as provided under Section 184(7) of the Act in Form No. 12 in cases of renewal. Though there is considerable similarity between Forms Nos. 11 and 11A, Form No. 12 is absolutely different. While the first two forms are statutory applications, Form No. 12 is a bare declaration to the effect that there has been no change and the benefit of registration already granted should be continued for a subsequent year. Section 185(2) provides ;
' The Income-tax Officer shall not reject an application for registration merely on the ground that the application is not in order, but shall intimate the defect to the firm and give it an opportunity to rectify the defect in the application within a period of one month from the date of such intimation. '
6. Section 185(3) provides :
' If the defect is not rectified within such time, the Income-tax Officer may reject the application. '
7. With effect from April 1, 1971, subsequent to the year in question, legislature has separately provided for application for registration in Sub-section (2)and the declaration in Sub-section (3) of Section 185 of the Act. In the instant case, the assessee was required to apply in Form No. 11A and was not entitled to furnish a declaration in Form No. 12. Assessee had not at all submitted an application inasmuch as a declaration in Form No. 12 had only been furnished. As already pointed out, Form No. 12 is not an application. A reading of the Forms Nos. 11, 11A on one side and Form No. 12 on the other makes the distinction clear. Sub-section (8) of Section 184 categorically provides that where a change has taken place in the previous year, the firm has to apply for fresh registration and not seek continuance of the benefit by way of renewal. Sub-section (2) of Section 185 upon which reliance has been placed by the Tribunal does not apply inasmuch as there was no application for registration before the ITO. Furnishing a declaration in Form No. 12 when assessee was required to make an application for registration does not bring the matter under Section 185 of the Act at all. The ITO had, therefore, made a mistake in extending the benefit and the Tribunal fell into an error in accepting the assessee's stand. The ratio of the decision of the Supreme Court in the case of Sri Ramamohan Motor Service v. CIT : 89ITR274(SC) , on principle, applies. Dealing with the corresponding provisions in the 1922 Act, the Supreme Court pointed out (p. 280) :
' This decision lays down that before a person can claim the benefit of Section 26A, he must strictly comply with the requirements of that section. In view of Sub-section (2) of that section, he is also required to comply with the requirements of the relevant rules. Failure to comply either with the requirements of Sub-section (1) or Sub-section (2) of Section 26A disentitles the applicant to the benefit of that section. '
8. Sub-section (2) of Section 185 was also sought to be relied upon in the Supreme Court and dealing with it the court observed (pp. 280, 281) :
' It was contended by Mr. Chagla, learned counsel for the appellant, that we should not allow technicalities to come in the way of our doing substantial justice to the parties. According to him substantial compliance with the rules set out above is sufficient to meet the ends of justice. In support of his plea he placed reliance on Section 185(2) of the- Income-tax Act, 1961. We are unable to accede to that contention. Section 185(2) of the 1961 Act is not retrospective in operation nor were the requirements of that provision complied with. The plea that substantial compliance with the rules is sufficient stands negatived by the decisions referred to earlier. '
9. As we have already pointed out, there was no application at all before the ITO, and, therefore, the question of applying Sub-section (2) of Section 185 of the Act or extending the principles of natural justice to the assessee did not arise. We are of the view that the Tribunal went wrong in finding fault with the Commissioner's order. Our answers to the two questions are as follows :
(1) On the facts and in the circumstances of the case, the ITO was notrequired to re-consider whether the filing of the declaration in Form No. 12was an application for registration.
(2) On the facts and in the circumstances of the case, the Tribunal was not justified in holding that opportunity was to be provided for removal of the defect in the application for registration (because none did exist) as contemplated under Sub-section (2) of Section 185 of the Act.
10. There would be no direction for costs as the assessee went unrepresented.
N.K. Das, J.
11. I agree.