I.S. Tiwana, J.
1. The petitioner-firm, which, though is a registered firm, has been assessed as an unregistered firm for the assessment year 1971-72, by the Income-tax Officer (ITO) for the reason that it failed to file the prescribed Form No. 12 within the time prescribed under Section 139 of the I.T. Act (for short 'the Act'). The explanation of the firm for this delayed filing of the declaration on account of its lack of knowledge about the amendment of prov. (ii) to Section 184(7) of the Act with effect from April 1, 1971, was not accepted as bona fide. On an appeal against this order of the ITO before the Appellate Assistant Commissioner (AAC), the conclusion recorded by ITO was affirmed. However, on further appeal, before the Income-tax Appellate Tribunal, the Tribunal disagreed with the abovenoted conclusions of the lower authorities and concluded the matter thus in favour of the assessee :
'So far as the question of existence of sufficient cause for the delay under consideration is concerned, we do not agree with the Appellate Assistant Commissioner that the fact of declaration having been signed on 3-9-1971, was determinative of the assessee's knowledge of the changed law requiring the filing of the declaration by 30-9-1971, even if the return of income was filed later. Thus, there is no material on record to warrant rejection of the assessee's plea as to its bona fide belief that the declaration in question could be filed along with the return of income as under the law effective until 13-3-1971. The assessee succeeds.'
2. But still, the appeal of the petitioner was dismissed by the Tribunal on the ground that the appeal before the AAC itself was not competent and, therefore, the appeal before the Tribunal was not competent. It is this later part of the order of the Tribunal which is now impugned in this petition.
3. It is not a matter of dispute now that in view of the Division Bench judgment of this court in CIT v. Mothooram Premchand it has to be held that the appeal before the AAC against the impugned order of the ITO was competent and to that extent, the later part of the impugned order of the Tribunal has to be set aside. Learned counsel for the respondents, however, raises two objections, firstly, the petition deserves to be dismissed as the petitioner failed to exhaust all the remedies available under the Act and, secondly, the abovenoted judgment in Premchand's case is not correct.
4. In support of his first contention, learned counsel makes a reference to C. A. Abraham v. ITO : 41ITR425(SC) Shivam Poddar v. ITO : 51ITR823(SC) and Munshi Ram v.. Municipal Committee, Chheharta : 118ITR488(SC) and contends that where a complete machinery has been prescribed by a revenue statute, a party to the litigation has to exhaust all the remedies provided for and cannot approach this court under art. 226 of the Constitution of India without exhausting those remedies. To be precise, the contention of the learned counsel is that the remedy of reference against the order of the Tribunal under Section 256 Df the Act was available to the petitioner and he having failed to avail the same, should be non-suited on that ground alone.
5. Having given my thoughtful consideration to the entire matter in the light of the above-noted judgments of the Supreme Court, I find that in the given facts and circumstances of this case, no weight can be attached to these contentions of the learned counsel. It is true that in the normal course the remedies provided for an aggrieved party by a statute, and particularly by a revenue statute, have to be availed of or exhausted by that party before invoking this extraordinary jurisdiction, yet, to my mind that can only be said in the context where the remedies are available to the party aggrieved as a matter of right. In case the petitioner is directed to ask for a reference under Section 256 of the Act, it will strictly be within the discretion of the Tribunal to say as to whether a question of law is involved or not. To me, it is clear that a reference is nobody's right. Otherwise also, I am of the view that the matter has essentially to end up here whether a reference is made or declined by the Tribunal. Further, I feel that the learned counsel for the petitioner is well justified in contending that at this stage this objection should not be available to the respondent-authorities in view of the observations of their Lordships of the Supreme Court in Hirday Narain v. ITO : 78ITR26(SC) Wherein it has been said that once the petition has been entertained by the High Court, it would not be justified in dismissing the same as not maintainable particularly when the remedy of appeal or for that matter, any remedy under the statute has become barred by time. I, therefore, repel this contention of the learned counsel for the respondents.
6. So far as the second contention of the learned counsel about the correctness of the Division Bench judgment in Premchand's case is concerned, I, sitting singly, feel respectfully bound by the said judgment. This is more so, when the judgments of different High Courts on which the learned counsel seeks reliance have already been considered by the Division Bench in this judgment.
7. In the light of the above discussion, the petitioner deserves to succeed and the impugned part of the Tribunal's order dismissing the appeal onthe ground that the petitioner's appeal before the AAC was not competent,has to be set aside. I order accordingly. As a necessary consequence ofthis, the petitioner's appeal before the Appellate Tribunal stands allowed.No costs.