TMI Blog1977 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... held that was no provision for an appeal against an order of the ITO declining to grant continuation of registration, relying on the decision of the Madras High Court in A.S.S.S. Chandrasekaran Bros. vs. CIT 96 ITR 711 (Mad). The assessee there went on appeal to the Tribunal contending that since the assessee was, in essence, questioning the assessment made on it as unregistered-firm, it was really objecting to the status and consequently the appeal to the AAC was competent under s. 246(c) and in support of this contention relied on Expln. 2 to s. 143(3). The assessee also relied on the explanation to s. 246 which provided that status means the category under which the assessee was assessed. The Departmental Representative, on the other hand, contended that there was no status as a registered firm or unregistered firm but only the general status of firm but only the general status of firm and consequently it could not be said that the assessee was challenging the status and, therefore, s. 246(c) was not applicable. 3. After considering the contentions of the assessee and the provisions of Expln. 2 to s. 143(3), the Judicial Member held as under: "Explanation 2 to s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in A.S.S.S. Chandrasekaran, relied on by the AAC and referred to supra, and in view of the fact that there is no provision in s. 246 providing for an appeal against an order of the ITO declining to condone the delay in furnishing of declaration for continuation of registration under s. 184(7), the appeal to the AAC on the above point was not competent. It is on this point was not competent. It is on this point that the Accountant Member had differed. 4. In his opinion, in accordance with the provisions of s. 184(7), if an assessee had filed Form No. 12 along with a return under s. 139(1) or s. 139(2) with extension granted by the ITO or taken by the assessee under s. 139(4) it should be regarded as filed in accordance with s. 184(7). In this connection he noted that the assessee had filed the return after the time granted under s. 139(2) by the ITO but long before the period within which he could file a return under s. 139(4) expired. He has also noted that the assessed had not filed Form No. 12 along with the return but he has not filed Form No. 12 after the period for which the time in s. 139(2) was "on extension". In that view he was of the opinion that there was no delay at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n individual, an HUF, an association etc., throughout the Act would be clear from several sections of the Act. Chapter XVI deals with special provisions applicable to firms. Here s. 182 refers to the assessment of registered unregistered firms. Making of assessment of one is clearly different from that of the other. As well the rates of tax on the income of registered firms is different from that of unregistered firms. Sec. 75 deals with the manner in which the losses of registered firms are dealt with, whereas s. 77 deals with the manner in which the losses of unregistered firms or their partners are to be dealt with. It would not, therefore, in view of the several provisions obtaining in the IT Act be correct to hold that the registered firm as well a the unregistered firm have the same status under the IT Act. The liability to tax if the firm is registered is clearly different from what it would be if it is not registered. Sec. 246(c) gives the right to the assessee to appeal to the AAC in a case where the status is objected to. The objection to the status arises only because of the tax effect. If there were no tax effect there could conceivably be no reason why an assessee shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the asst. yr. 1964-65 whereas Expln. 2 to s. 143(3), on the application of which the controversy in this case rests, is a provision introduced from 1st April, 1971. I may usefully extract the said explanation hear : "Explanation", For the purpose of this section. (2) "Status", in relation to an assessee, means the classification of the assessee as an individual, an HUF, or any other category of persons referred to in cl. (31) of s. 2, and where the assessee is a firm, its classification as a registered firm or an unregistered firm". Under s. 246(c), appeal is provided against "any order of the assessment under sub-s. (3) of s. 143 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" (italicised by me). There is an explanation to s. 246(c) which says, "status" means the category under which the assessee is assessed as "individual", "HUF" and so on The question now is whether, in the absence of a similar amendment to the explanation under s. 246(c), covering also the case of registered firm and unregistered firm the Accountant Member was right in interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has a wider base ad as the entire assessment falls under that section, other than assessment under s. 144, it will cover all sub-sections of s. 143(3). As against the argument of the Departmental Representative that in the explanation to s. 246 there is not a similar classification of status as registered firm and unregistered firm , as is the case in Expln. 2 to s. 143(3), I am of the view that there is no need for such an extended meaning in that explanation because it would fall within the phrase and so on already there where is comprehensive. I am of the view that when an order of assessment under s. 143(3) is the subject-matter of appeal under s. 246(c) and when the assessee objects to the status specified in that assessment, the meaning of status in s. 246(c) should be with reference to s. 143(3), because an order of assessment under s. 143(3), has many parts which may be brought within the subject-matter of appeal under s. 246(c), one being that of status . When status is an essential part of the assessment order under s. 143(3) and when we find the meaning of status as registered firm and unregistered firm in that section i.e. 143(3), the same meaning has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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