Balakrishna Eradi, C.J.
1. At the instance of the Commissioner of Income-tax, Kerala, the Income-tax Appellate Tribunal, Cochin Bench (hereinafter called 'the Tribunal'), has referred to this court under Section 256(1) of the I.T. Act, 1961, for short 'the Act', the following question of law which has arisen out of the order of the Tribunal dated 30th August, 1977, in I.T.A. No. 162/Coch/1976-77 :
'Whether, on the facts and in the circumstances of the case, the appeal preferred by the assessee to the Appellate Assistant Commissioner against the order passed by the Income-tax Officer declining to condone the delay in the filing of the application for registration and consequently refusing registration for the assessment year 1974-75 was competent ?'
2. The assessee is a firm of three partners carrying on business in the name and style 'Tirur Medical Hall'. The partnership was constituted under a deed dated November 15, 1967. On May 16, 1974, the assessee filed an application before the ITO in Form No. HA praying for registration of the firm. Subsequently, the assessee realised that the correct form in which the application should have been filed was Form No. 11 and hence it filed another application in Form No. 11 on August 22, 1974. Since the accounting year of the assessee relevant for the assessment year 1974-75, ended on March 31, 1974, the aforesaid application for registration was beyond the time limit prescribed by Section 184(4) of the Act. While putting in the application, the assessee, therefore, submitted an explanation that the delay in filing the same was caused on account of the fact' that one of the partners was suffering from 'mental worries' and his physical condition was also not satisfactory from March 1, 1974, onwards. The ITO was not satisfied with the said explanation and hence by his order dated 30th August, 1975--Annex. 'A'--declined to condone the delay and rejected the application for registration. The said order was specifically expressed as one made under Section 185(1)(b) of the Act.
3. The assessee feeling aggrieved by that order appealed before the AAC, Calicut, reiterating his submission that the delay in filing the application for registration had been caused on account of the mental and physical ailment of the partner by name, Kunhimoidu, who was said to have been undergoing treatment during the period February 10, 1974, to May 20, 1974. The AAC went into the merits of the said contention and held that the explanation offered by the assessee was vague and unsatisfactory and rejected the appeal as per his proceedings dated February 23, 1976--Annex. 'C'.
4. Thereupon the assessee took up the matter in second appeal before the Tribunal. A preliminary objection was raised by the departmentalrepresentative before the Tribunal that the order of the ITO refusing to condone the delay was one passed under Section 184(4) of the Act and since the Act does not provide for an appeal against such an order, the appeal preferred by the assessee to the AAC was not competent and consequently the second appeal filed before the Tribunal was also not maintainable. The Tribunal took the view that in the scheme of granting registration to firms the only provision which envisages an order being passed by the ITO is Section 185 and the statute does not contemplate any order being passed by the ITO under Section 184. The decision of the Supreme Court in Mela Ram and Sons v. CIT : 29ITR607(SC) was relied on by the Tribunal in support of the said view. Accordingly, the Tribunal held that the order passed by the ITO declining to condone the delay in the filing of the application for registration and consequently rejecting the prayer for the grant of registration was to be considered as one passed under Section 185(1)(b) of the Act and hence an appeal against such an order lay to the AAC. The preliminary objection raised by the department was, therefore, overruled by the Tribunal. On the merits of the appeal, the Tribunal held that the assessee had made out sufficient cause for the delay in filing the application and hence the prayer for condonation of the delay deserved to be granted. Accordingly, the Tribunal allowed the appeal and directed the ITO to consider the assessee's prayer for the grant of registration on merits. Annex. 'E' is a copy of the said order of the Tribunal dated August 30, 1977.
5. Although it was strongly urged before us by counsel for the revenue that the Tribunal is not right in its view that under the scheme of the provisions contained in the Act relating to the grant of registration to firms, the only provision which envisages an order being passed by the ITO is Section 185 and that Section 184(4) does not envisage any order being passed thereunder, we do not feel called upon in this case to go into the said question. Even if we assume for the purpose of discussion that counsel for the revenue is right in his contention that Section 184(4) contemplates an order being passed thereunder either allowing or rejecting the prayer for condonation of the delay in the presentation of an application for registration of a firm and that no appeal is provided for by the statute against such an order, the order annex. 'A', passed by the ITO in the case before us is one specifically expressed by him to be one passed under Section 185(1)(b) of the Act. It is a well-established principle that where a court or Tribunal acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on facts the order should not have been passed under that provision. The right of appeal depends on what the court or Tribunal actually does, and not what it should have done--See Hurrish Chunder Chowdhry v. Kalisundari Debi ILR  9 Cal 482 (PC),Abdul Rahiman Saheb v. Ganapathi Bhatta ILR  23 Mad 517, Muthiah Chettiar v. Krishna Doss Varu, AIR 1921 Mad 599 [FB], Oor Nayakkan v. Arunachala Chettiar, AIR 1948 Mad 245, Ganga Das v. Mst. Gopli, and Sohan Singh v. Jawala Singh Natha Singh, .
6. Counsel for the revenue relied on the ruling of the Privy Council in CIT v. Khemchand Ramdas  6 ITR 414, but that decision is clearly distinguishable. All that was held by their Lordships of the Privy Council in that case was that a party will not be deprived of the right of appeal to which he is under law entitled by reason merely of the fact that the order complained against, which in its true nature is appealable, was purported to have been made under an unappealable provision.
7. Applying the principle laid down in the rulings first cited (Hurrish Chunder Chowdhry v. Kalisundari Debi ILR  9 Cal 482 (PC), Abdul Rahiman Saheb v. Ganapathi Bhatta ILR  23 Mad 517, etc., it has to be held that since the ITO has passed the order, annex 'A', specifically in the exercise of his powers under Section 185(1)(b), the appeal filed by the assessee before the AAC was maintainable under Section 246(j) of the Act.
8. We, accordingly, answer the question referred in the affirmative, i.e., in favour of the assessee and against the department. There will be no direction regarding costs. A copy of this judgment, under the seal of this court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.