TMI Blog2015 (10) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and reproduced by the ld.CIT(A). Thus we delete the disallowance made by the ld.AO. - Decided in favour of assessee. - ITA No.73/Ahd/2012 - - - Dated:- 13-8-2015 - SHRI RAJPAL YADAV AND SHRI ANIL CHATURVEDI, JJ. For The Assessee : Shri M.K. Patel For The Revenue : Shri D.C. Mishra, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The assessee is in appeal before us against the order of the ld.CIT(A), Gandhinagar dated 17.10.2011 passed for Asstt.Year 2005- 06. 2. The assessee has taken seven grounds of appeal. In ground no.1, the assessee pleaded that the assessment order is not sustainable in the eyes of law, because notice under section 143(2) was not issued within the statutory time limit. In groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andatory assessment and disallowances u/s.185, there is no other option but to disallow the claim of interest and remuneration etc. Under sec. 185, the deduction of expenses like interest, salary etc., has to be denied for the entire assessment year once the provisions of sec. 184 are not complied. There is no ambiguity in the provisions of this section. The appellant s plea that such expenses could have been disallowed only for the period after change in constitution of the firm is not legally valid and is dismissed. 6. Before us, the ld.cousnel for the assessee on the strength of judgment of the Hon ble Calcutta High Court rendered in the case of CIT Vs. S.R. Baliboi Associates, 230 Taxman 438 (Calcutta) contended that the filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal so as to deny the claim of the assessee though the requisite details and the evidence is made available to the A.O. before he completes the assessment. The Hon'ble Delhi High Court has also held in the case ofRemfry Sons v. CIT [276 ITR - 1] that non filing of the partnership deed is an irregularity and is a curable defect, which gets cured by filing the same in the assessment proceedings. Further the Hon'ble jurisdictional High Court in the case of Joshi And Co. v. CIT [162 ITR 268] has observed that non-accompanying of the instrument of partnership could only be held to be defective and the Income Tax Officer ought to have called upon the assessee to make the defect, the Hon'ble Gujrat High Court in the case of Billimora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ground No.1 of the appeal taken by the Department.' [Hon ble High Court Order] It is this order which is under challenge. 7. Mrs. Das De, learned advocate appearing for the appellant reiterated the submissions advanced before the learned Tribunal that section 185 is emphatic and also starts with a non-obstante clause. Therefore, omission on part of the assessee to comply with the requirement of sub-section 4 of section 184 precludes the assessee from claiming any deduction by way of salary paid to the partners. She contended that the learned Tribunal erred in taking a view which is plainly contrary to the section namely Section 185. We have not been impressed by such submission. 8. We are of the opinion that the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22(3) is complied with section 22(1) must also be held to have been complied with. If compliance has been made with the latter provision the requirements of section 22(2A) would stand satisfied. 11. Mrs. Das De has not disputed before us that the assessee could have filed his return along with the certified copy of the instrument of change within the period prescribed by sub-section 4 of section 139. In that case, the return would have been perfectly valid and there would have been no violation of subsection 4 of section 184. But because the assessee filed the instrument of change before the day on which the assessee could have filed under sub-section 4 of section 139, the return is to be treated as invalid, is a submission which we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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