R.N. Misra, J.
1. On the assessee's application, the Income-tax Appellate Tribunal has stated a case and referred the following question for the opinion of the court :
'Whether, in the facts and circumstances of the case, the Tribunal was justified in holding that the order passed by the Income-tax Officer was not under Section 185 and, therefore, the appeal preferred by the assessee was incompetent ?'
2. Assessee is a partnership firm. For the assessment year 1964-65, the assessee made an application claiming registration of the firm. The accounting period for the relevant assessment year ended on December 31, 1963. The application for registration was filed on 30th of June, 1966--2 1/2 years beyond time in view of the statutory provision that the application has to be filed during the previous accounting year. The Income-tax Officer rejected the application by saying :
'Application for claiming registration has been filed on June 30, 1966. The application is clearly out of time. Although the firm is genuine, registration cannot be granted as the application was not filed within the time prescribed by law. Hence, the application is rejected.'
3. The Appellate Assistant Commissioner rejected the appeal by saying :
'I find that in the appellant's case the Income-tax Officer has mentioned at the beginning of the order (just against the column for status) that the firm had not been registered under Section 185. This gives an impression as if the Income-tax Officer's refusal to grant registration to the firm has been made under Section 185. But, if one goes into the contents of the order it will be quite clear that what the Income-tax Officer has only done is that the order has been passed under Section 184. To quote him application is clearly out of time. Although the firm is genuine the registration cannot be granted as the application was not filed within the time prescribed by law. Hence, the application is rejected '.
It is, therefore, clear from the order of the Income-tax Officer that he has, without examining the genuineness of the firm, refused registration of the firm purely on account of delayed application. Merely because in writing an order, the Income-tax Officer has committed a technical mistake of quoting a wrong section, it cannot be said that the order of the Income-tax Officer is wrong in law. I, therefore, hold that the refusal of registration has been correctly made by the Income-tax Officer.'
4. The Appellate Tribunal dismissed the assessee's appeal by saying :
'.........We are unable to accept the contention on behalf of theassessee that the Income-tax Officer having assumed jurisdiction under Section 185 was bound to grant registration in accordance with the provisions under Section 185(1). It is not disputed that the application submitted by the assessee was clearly beyond the prescribed time and it is also conceded that there was no evidence in support of the fact that the assessee had filed any petition for condonation of delay. In the circumstances, the Income-tax Officer, in our view, has no jurisdiction to entertain the application at all as, under Section 184, prima facie, he could entertain an application made after the end of the previous year only if he is satisfied that the firm was prevented by sufficient cause from making the application before the end of the previous year. Apart from the nomenclature or label assigned to his order we have to consider, having regard to the correct facts, what the Income-tax Officer really did in this case in his order purporting to be under Section 185. Having regard to the correct facts, since, as already observed, the application was beyond the time prescribed, he could not have exercised the jurisdiction under Section 185(1) except under the provisions to Section 184(1). The provisions of the Act do not contemplate any order for not entertaining the application beyond the time limit and what the Income-tax Officer has done in his purported order is only superfluous............'
5. It is thus clear that both the Appellate Assistant Commissioner as also the Tribunal have taken the view that the order passed by the Income-tax Officer was one under Section 184 of the Income-tax Act (hereinafter referred to as 'the Act'). It is appropriate that at this stage we read the provision :
'184. (4) The application shall be made before the end of the previous year for the assessment year in respect of which registration is sought:
Provided that the Income-tax Officer may entertain an application made after the end of the previous year, if he is satisfied that the firm was prevented by sufficient cause from making the application before the end of the previous year.'
6. Section 185 lays down the procedure on receipt of applications. Sub-section (2) thereof runs thus :
'Where the Income-tax Officer considers that the application for registration is not in order, he 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; and if the defect is not rectified within that period, the Income-tax Officer shall, by order in writing, reject the application.'
Two decisions of the Madras High Court have been cited before us for the proposition that it is incumbent on the assessee to show cause why delay in filing of an application for registration should be excused and it is not for the Income-tax Officer to call upon the assessee to show cause, (See Pannalal Ramkumar & Co. v. Income-tax Officer : 75ITR309(Mad) and A.S.S.S.S. Chandrasekaran v. Commissioner of Income-tax : 96ITR711(Mad) ). In the latter case, it has been further observed that the proviso to Section 184(4) enabling an officer to entertain an application made after the end of the previous year on sufficient cause being shown implies also the power to refuse the application if he is not satisfied on the explanation. The defects contemplated in Sub-section (2) of Section 185 relate to formal defects when the application is filed in time and do not relate to the application being out of time which case is specifically covered by Section 184(4). We are inclined to agree with the view expressed in these decisions. The position, therefore, would be that when an application is rejected as being out of time, the order is one under Section 184(4) and not under Section 185 of the Act. The consequence of this position is that the appeal of the assessee before the Appellate Assistant Commissioner was not maintainable.
7. The legal position is beyond dispute that an appeal is a creature of the statute and, unless statutorily conferred, no appeal lies. Section 246 of the Act indicates what are appealable orders. Clause (j) provides:
'An order refusing to register a firm under Clause (b) of Sub-section (1) or under Sub-section (2) or Sub-section (3) or Sub-section (5) of Section 185.'
8. Thus, no appeal lay against the order made by the Income-tax Officer under Section 184(4) of the Act. As the appeal before the Appellate Assistant Commissioner was not competent under Section 253 of the Act, the second appeal did not lie to the Tribunal. The reference is thus incompetent. We accordingly discharge it. There shall be no order as to costs.
9. I agree.