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TMI Blog2000 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was justified in confirming the order refusing to grant registration merely on technical grounds, which are procedural formalities? (iii) Whether the Tribunal was justified in confirming the order of the assessing authority refusing to grant registration, without considering the provisions of section 185(2) of the Income-tax Act, 1961, wherein opportunity to remove the defect in the application for registration is to be given? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order refusing to grant registration on the ground that Forms Nos. 11 and 11A were filed at the close of accounting year on June 30, 1981, whereas the accounting year ended on June 30, 1981, and the filing of these forms is a procedural requirement? (v) Whether the Tribunal was justified in confirming the order refusing to grant registration to the firm, whereas the partners have been assessed in their individual capacity on the determined share income from the firm?" "Assessment years 1984-85 and 1985-86: (i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order refusing to grant re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 984-85, the Assessing Officer did not allow continuation of registration on the ground that registration had been refused for the assessment year 1981-82 and no fresh deed was filed although Form No. 12 was filed on June 30, 1984. For the assessment year 1985-86 also registration was refused. The Assessing Officer observed that because of non-compliance of notices under sections 143(2) and 142(1), the assessment was made ex parte and, therefore, the genuineness of the partnership was in doubt. The assessee appealed to the Appellate Assistant Commissioner who reversed the orders passed by the Assessing Officer holding that the firm was genuine and registration had already been granted to the firm for assessment year 1980-81 and there was no valid ground for declining the renewal of registration for the assessment year 1981-82, 1984-85 and 1985-86. The Assessing Officer then appealed to the Tribunal and allowing the aforesaid appeals, the Tribunal restored the orders passed by the Assessing Officer and upholding the reasons given by the Assessing Officer for refusing to allow the registration to the firm for the assessment year 1981-82 and renewal of registration for the assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here registration is granted to any firm for any assessment year, it shall have effect for every subsequent assessment year: Provided that-- (i) there is no change in the constitution of the firm or the shares of the partners as evidenced by the instrument of partnership on the basis of which the registration was granted; and (ii) the firm furnishes, before the expiry of the time allowed under sub-section (1) or sub-section (2) of section 139 (whether fixed originally or on extension) for furnishing the return of income for such subsequent assessment year, a declaration to that effect, in the prescribed form and verified in the prescribed manner, so, however, that where the Income-tax Officer is satisfied that the firm was prevented by sufficient cause from furnishing the declaration within the time so allowed, he may allow the firm to furnish the declaration at any time before the assessment is made. (8) Where any such change has taken place in the previous year, the firm shall apply for fresh registration for the assessment year concerned in accordance with the provisions of this section." Sub-section (2) of section 185 provides for removal of defects in the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner, the partnership deed was filed in the Income-tax Office on December 22, 1982, meaning thereby that the application in Form No. 11A was not accompanied by the partnership deed dated August 2, 1980. Learned standing counsel, Sri Prakash Krishna, contended that the Supreme Court has already held that for the defaults, as pointed out above, the registration cannot be granted and, therefore, no referable question arises from the order of the Tribunal. He placed reliance on Wazid Ali Abid Ali v. CIT [1988] 169 ITR 761 (SC), in which it was held that where an heir of a deceased joins the partnership, there is a change in the constitution of the firm and fresh deed of partnership and fresh application for registration is necessary. In Sri Ramamohan Motor Service v. CIT [1991] 188 ITR 212, the Supreme Court held that where no valid partnership deed was in existence during the accounting period, the firm was not entitled to registration. Learned counsel for the petitioner, on the other hand, placed reliance on Shivkisan Laxminarayan Jaju and Sons v. CIT [1976] 105 ITR 359 (Bom). That was a case in which the partnership provided that the death of any partner shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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