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Commissioner of Income-tax Vs. Rupa Traders - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberIncome-tax Reference No. 149 of 1975
Judge
Reported in[1979]118ITR412(Cal)
ActsIncome Tax Act, 1961 - Sections 143, 185 and 246; ;Income Tax Rules, 1962 - Rule 45
AppellantCommissioner of Income-tax
RespondentRupa Traders
Appellant AdvocateB.K. Naha, Adv.
Respondent AdvocateNone
Excerpt:
- .....appeals consolidating the appeals against the order of assessment with the appeals against the orders refusing registration or refusing renewal of registration. the tribunal accepted the contentions of the assessee and held that in the i.t. act, 1961, there was no provision for filing a separate appeal against an order under section 185, i.e., separately from an appeal against the order of assessment under section 143. the tribunal also noted that section 246 of the i.t. act, 1961, provided for appeals against various orders mentioned in the said section, including an order refusing registration or refusing renewal of registration which the tribunal noted was a matter of substantive law. the tribunal also noted that under the rules framed under the i.t. act, 1961, separate forms of.....
Judgment:

Dipak Kumar Sen, J.

1. In this reference arising out of an application of the Commissioner of Income-tax, West Bengal-V, Calcutta, under Section 256(1) of the I.T. Act, 1961, the question of law which has been referred is as follows :

'Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the Appellate Assistant Commissioner was justified in entertaining a single appeal against both the orders under Section 143 and Section 185 of the Income-tax Act, 1961, in respect of the assessment years 1967-68, 1968-69 and 1969-70 ?'

2. The facts on record are, inter alia, as follows : Rupa Traders, the assessee, was treated as an 'association of persons' by the ITO in the assessment years 1967-68, 1968-69 and 1969-70, for which the relevant accounting periods are Gujrati Dewali 2022, 2023 and 2024, respectively.

3. In the assessment year 1967-68, the ITO made an assessment under Section 143(3) and also passed an order under Section 185 whereby the registration of the assessee as a firm in the said assessment year was refused and its status wasdetermined to be that of an 'association of persons'. For the subsequent assessment years 1968-69 and 1969-70, the ITO passed similar orders under Section 185.

4. Being aggrieved, the assessee preferred appeals from the said orders being one appeal each for each of the said three years under consideration. In each appeal both the order of assessment as also the order under Section 185 refusing registration of the assessee as a firm were included. The AAC entertained the said appeals and ultimately by a consolidated order held that the ITO was not justified in refusing registration of the assessee for the assessment year 1967-68 and refusing renewal of registration for the subsequent years and directed the ITO to allow registration accordingly.

5. Being aggrieved, the revenue preferred a further .appeal from the consolidated order of the AAC before the Income-tax Appellate Tribunal. In the appeal, it was contended on behalf. of the revenue that the AAC was in error in entertaining the assessee's appeals consolidating the appeals against the order of assessment with the appeals against the orders refusing registration or refusing renewal of registration. The Tribunal accepted the contentions of the assessee and held that in the I.T. Act, 1961, there was no provision for filing a separate appeal against an order under Section 185, i.e., separately from an appeal against the order of assessment under Section 143. The Tribunal also noted that Section 246 of the I.T. Act, 1961, provided for appeals against various orders mentioned in the said section, including an order refusing registration or refusing renewal of registration which the Tribunal noted was a matter of substantive law. The Tribunal also noted that under the Rules framed under the I.T. Act, 1961, separate forms of appeals against different types of orders were totally dispensed with and only one form was prescribed for preferring an appeal. This was not the position under the earlier Act. The Tribunal finally observed that no fee was payable for filing an appeal to the AAC, and as such there was no question of avoidance of any stamp duty. The appeal of the revenue was dismissed.

6. Mr. B.K. Naha, learned advocate appearing for the revenue at the hearing, drew our attention to a decision of this court in Fuel Supply Co. v. CIT : [1965]58ITR130(Cal) , where it was held by a Division Bench of this court that, in view of the provisions contained in Section 23(4) and Section 30 of the Indian I.T. Act, 1922, and the statutory forms prescribed thereunder, an assessee was required to file two separate appeals where the assessee challenged both a best judgment assessment and an order refusing registration.

7. In our view, this decision is of no assistance to the revenue inasmuch as both the law and the procedure have been altered in the later statute ofthe I.T. Act, 1961. The relevant sections with which we are concerned are, inter alia, as follows :

'246. Appealable orders.--Any assessee aggrieved by any of the following orders of an Income-tax Officer may appeal to the Appellate Assistant Commissioner against such order--...

(c)..any order of assessment under Sub-section (3) of Section 143 or Section 144, where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed ;...

(j) an order under Clause (b) of Sub-section (1) or under Sub-section (2) or Sub-section (3) or Sub-section (5) of Section 185;... '

8. Rule 45 of the I.T. Rules, 1962, provides as follows:

'45. Form of appeal to Appellate Assistant Commissioner.--(1) An appeal (under Section 246)...to the Appellate Assistant Commissioner shall be made in Form No. 35.'

9. Form No. 35 appears to be an omnibus form and applies to all appeals prescribed under Section 246. All that the assessee is required to do is to strike out the inappropriate columns.

10. It appears to us that the objections of the revenue in this matter are hyper-technical. The contention of the revenue has no force inasmuch as under the I.T. Act, 1961, read with the I.T. Rules, 1962, and the forms prescribed, it is possible to combine more than one appeal. In any event, the matter is otherwise of little consequence as no fee is prescribed for filing of appeals before the AAC. We find no error in the order of the Tribunal and we find no reason to differ from the conclusions arrived at by the Tribunal and, accordingly, we answer the question in the negative and in favour of the assessee. There will be no order as to costs.

C.K. Banerjee, J.

11. I agree.


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