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K.M.S. Subbiah Chettiar and Bros. (Firm) Vs. State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Revision Case No. 241 of 1978
Judge
Reported in[1983]142ITR16(Mad)
ActsIncome Tax Act, 1961 - Sections 187
AppellantK.M.S. Subbiah Chettiar and Bros. (Firm)
RespondentState of Tamil Nadu
Appellant AdvocateV.M. Lenin, Adv.
Respondent AdvocateA. Bhakthavatsalam, Adv.
Excerpt:
.....without noticing fact of delay - another agr.i.t.o. issued notice to firm asking explanation for delay - firm offered explanation and delay condoned - commissioner agricultural income-tax (commr. agri.i.t.) set aside order granting registration of firm - commr. agri.i.t. contended that agr.i.t.o. cannot cure defect of another agr.i.t.o. - rule 16 conferred power on agr.i.t.o. to entertain application filed after prescribed time if he is satisfied of cause explained for delay - subsequent order condoning delay justified in view of satisfaction of sufficient cause for delay - impugned order of commr. agri.i.t.set aside. - - 7. provided that the agricultural income-tax officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is..........dissolution and by a legal representative of any such partner who is deceased and shall, for any year of assessment up to and including the assessment year ending on the 31st day of march, 1958, be made before the 15th day of march, 1958, and for assessment subsequent thereto, be made - (a) where the firm is not registered under the indian partnership act, 1932 (central act ix of 1932), or where the deed of partnerships not registered under the indian registration act, 1908 (central act xvi of 1908), and the application for the registration is being made for the first time under the act - (i) within the period of six months of the constitution of the firm or before the end of the 'previous year' of the firm, whichever is earlier, if the firm was constituted in the previous year; and.....
Judgment:

1. This tax revision case arises under the Tamil Nadu Agricultural Income-tax Act, 1955 (referred to as 'the act' in this judgment). There was originally a partnership firm styled K.M.S. Mallayan Chettiar and Brothers in Theni. The firm consisted of seven partners. Mallayan Chettiar died on July 4, 1972. Thereupon, the firm was reconstituted under the name and style, K.M.S. Subbiah Chettiar and Brothers,. The reconstituted firm has 17 partners. On September 17, 1974 pursuant to its reconstitution the reconstituted firm applied for registration to the Agrl. ITO Theni, for the registration of the firm under s. 27 of the Act. The application was filed in September, 1974. In and by his proceedings GIR 48(m) Upm/74-75, dated December 20, 1974 the Agrl, ITO Theni, passed an order directing the registration of the firm with effect from the assessment year 1974-75. For the years 1975-76 and 1976-77 renewal of registration was also granted to the firm. On the very same date, the said Agrl. ITO completed the assessment for the year 1974-75 i.e. for the accounting period April 1, 1973, to March 31, 1974.

2. On April 30, 1976 the Agrl. ITO Madurai, issued a notice to the firm under s 35 of the Act calling upon the firm to show cause why the assessment for the years 1974-75 and 1975-76 should not be revised. The notice stated that the application for registration of the reconstituted firm filed by the firm on September 17, 1974 was time barred and that, therefore, the assessment for the year 1974-75 should both have been made on the basis that the assessee was a firm but should have been made only on the basis that the assessee was an association of persons. The firm sent a reply on June 10, 1976. In the said reply, the firm stated that the delay in filing the application for registration was due to the fact that the clerk who was in charge of the matter fell ill and that the managing partner, Subbiah Chettiar, m was preoccupied with certain family matters. This matter was brought to the notice of the Agrl. ITO Theni, on the earlier occasion. The firm, therefore, prayed that the delay in filing the application for the registration of the firm for the year ending March 31, 1975, might be condoned. On July 3, 1976 the Agrl ITO Madurai, passed an order condoning the delay on the part of the firm in filing the application for registration for the assessment year 1974-75, and regularised the matter.

3. On November 30, 1977, the Commr. of Agr l.I.T. issued a notice to the firm under s. 34 of the Act stating that the registration granted to the firm for the assessment year 1974-75 was liable to be canceled in the view of the fact the Agrl. ITO, Theni, had not confound the delay before ordering registration of the firm and, therefore, the assessment orders for the years 1974-75 to 1976-77 would also have to be canceled. The firm offered an explanation. The Commr. Agrl. I.T. by his proceedings SMRP No. 38 to 95/77-A1, dated December 17, 1977, passed the impugned order setting aside the granting registration of the firm and also the assessment orders for the years 1974-75 to 1976-77. The tax revision case has been field by the firm against the said order of the Commr. of Agrl. I.T.

4. The Commr. of Agrl I.T. in his order impugned herein has stated that the order of the Agrl, ITO, Theni, could not be sustained and that he had not applied his mind to the question whether the application field by the firm for registration was within time and whether there was sufficient cause of excusing the delay. The Commissioner came to the conclusion that the order passed by the Agrl. ITO, Madurai, on July 3, 1976 was equally legal on the ground that he being a co-ordinate authority had no jurisdiction to rectify the action predecessor in office and that the illegality that attached itself to the order passed by the Agrl. ITO, Theni, could not be cured by the Agrl. ITO, Madurai by any subsequent order of his. The Commissioner also rejected the contention on behalf of the firm that the show-cause notice had not been served on the firm.

5. Section 27 of the Act deals with the procedure in registration of the firms. It reads thus :

'27. (1) Application may be made to the Agriculture Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for a purpose of this Act and of any other for the time being in force relating to agricultural income-tax.

(2) The application shall be made by such person and at such times and shall contain such particulars and shall be in such form, and be varied in such manner, as may be prescribed, and it shall be dealt with by the Agricultural Income-tax Officer in such a manner as may be prescribed.'

6. Rule 16 of the Tamil Nadu Agrl. I.T. Rules (referred to as 'the Rules' in this judgment), reads thus :

'16. Any firm constituted under an instrument of partnership specifying the individual shares of the partners may, on application made in this behalf under the provision of section 27, register with the Agricultural Income-Tax Officer, the particular contained in the said instrument. Such application shall be signed by all the partners (not being minors) personally, or in the case of dissolved firm by all the partners (not being minors) who were partners in the firms immediately before dissolution and by a legal representative of any such partner who is deceased and shall, for any year of assessment up to and including the assessment year ending on the 31st day of March, 1958, be made before the 15th day of March, 1958, and for assessment subsequent thereto, be made -

(a) where the firm is not registered under the Indian Partnership Act, 1932 (Central Act IX of 1932), or where the deed of partnerships not registered under the Indian Registration Act, 1908 (Central Act XVI of 1908), and the application for the registration is being made for the first time under the Act -

(i) within the period of six months of the constitution of the firm or before the end of the 'previous year' of the firm, whichever is earlier, if the firm was constituted in the previous year; and

(ii) before the end of the previous year in any other case,

(b) where the firm is registered under the Indian Partnership Act, 1932 (Central Act IX of 1932), or where the deed of the partnership is registered under the Indian Registration Act, 1908 (Central Act XVI of 1908), before the end of the previous year of the firm; and

(c) where the application is for renewal of registration under rule 20 for any year, before the 30th day of June of that year.

7. Provided that the Agricultural Income-tax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.'

8. Undoubtedly, in this case, the application for registration for the year 1974-75 was filed by the firm belatedly on September 3, 1974. The Proviso to r. 16 of the Rules confers power on the Agrl. ITO to entertain the application made after the prescribed time limit if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time. The learned Addl. Govt. Pleader vehemently argued that Agrl. ITO, Theni, overlooked the fact that the application for registration was filed by the firm belatedly and, consequently, did not apply his mind at all to the question whether there was sufficient cause for the belated application. The order directing registration of the firm passed by the said officer on December 20, 1974, was illegal and, consequently, the Agrl. ITO, Madurai had no jurisdiction to rectify the order passed by the Agrl. ITO, Theni, on December 20, 1974. Viewed in this sense, argued the learned Addl. Govt. Pleader that in passing his order dated 20th December 1974 the Agrl. ITO did not take into account the fact that the application for registration had been made by the firm belatedly. Naturally, therefore, he did not go into the question whether the firm was prevented by sufficient cause from making the application within the specified time, It is clear from r. 16 of the Rules that a firm has to apply for registration within the period specified therein. The application for registration filed beyond the prescribed period of time cannot be entertained unless the Agrl. ITO is satisfied that the firm was prevented by sufficient cause from making the application within the specified time, As rightly pointed out by the learned Addl. Govt. Pleader the order dated December 20, 1974, does not on the face of it show that the Agrl. ITO, Theni, applied his mind to the question of delay in the filing of the application for registration on the part of the firm and on the question whether the firm was prevented by sufficient cause from making the application within the prescribed time-limit. That being the case, the order passed by the Agrl. ITO Theni, on December 20, 1974, must be deemed to be a nullity and has no legal effect. The Agrl. ITO, Madurai, was, therefore, perfectly justified in coming to the conclusion that the registration ordered by the Agrl. ITO, Theni, on December 20, 1974, in view of the belated application filed by the firm was irregular and in issuing a show-cause notice to the firm to show cause why the assessment for the year 1974-75 should not be revised under s. 17(3) of the Act treating all the partners of the firm as association of persons. In his reply addressed to the Agrl. ITO, Madurai, Subbiah Chettiar, managing partner of the firm, besides stating the fact that on the earlier occasion the Agrl. ITO, Theni, had condoned the delay in filing the application for registration, had also explained the cause which prevented the firm from filing the application for registration in time and had also requested that the delay in seeking the registration of the firm for the year ending March 31, 1975, might be condoned. The Agrl. ITO, ITO, Madurai, stated that the files did not show that the Agrl. ITO, Theni, had condoned the delay as contended for by the firm. However, the said officer, on consideration of the explanation offered by the firm and also the relevant circumstances, passed an order condoning the delay on the part of the firm in making the application for registration for the assessment year 1974-75, thereby regularising the registration. It is clear from the order dated July 3, 1976, passed by the Agrl, ITO, Madurai, that he had applied his mind to the question whether the firm was prevented by sufficient cause from filing the application for registration for the assessment year 1974-75. He was satisfied that there was sufficient cause for the delay and accordingly, condoned the delay. It is not a case of the Agrl. ITO, Theni, as has been understood by the Commr, if I.T. It was not attempted to be argued by the learned addl. Govt. Pleader and it could not have been so argued that the Agrl. ITO Madurai, could not have condoned the delay on the part of the firm in applying for registration for the year 1974-75. If that be the true legal position, we have no hesitation in holding that the Agrl. ITO, Madurai, was perfectly justified in exercising his discretion and condoning the delay in preferring the application for registration on the part of the firm, when once he was satisfied that the firm was prevented by sufficient cause from making the application within the time. Once we come to the conclusion that the delay in seeking the registration of the firm was properly condoned by the Agrl. I.T.O. Madurai, by the order dated July 30,1976, it necessarily follows that the registration granted for 1974-75 and the renewals for 1975-76 and 1976-77, and the assessment for the years 1974-75 to 1976-77, are valid, WE are, therefore, of the view that the impugned order of the Commr. of Agrl,. I.T. is liable to be set aside and is, accordingly, set aside. The tax revision case is allowed, but, under the circumstances of the case, without costs.


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