TMI Blog1990 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee-firm as provided under section 184(7) of the Income-tax Act, 1961 ?" The assessee is a partnership firm. It was enjoying the status of registered firm till the assessment year 1973-74. The present dispute relates to the assessment year 1974-75. The accounting year relevant to this assessment year ended on March 31, 1974. Under section 139(1) of the Act, the assessee was required to file its return of income on or before July 31, 1974, and the assessee did Me the return on July 31, 1974. But the statutory declaration in Form No. 12 required to be filed within the time prescribed for filing the return for seeking continuation of registration Ps per section 184(7) of the Act was filed out of time, i.e., on October 8, 1974. Therefore, there was a delay in filing the said declaration seeking continuation of registration. On being asked by the Income-tax Officer to explain the reason for the delay in filing the said declaration, the assessee stated in writing that the delay was caused because of the serious illness of one of the partners of the firm, Smt. Noor Jehan, who was under medical treatment. In support of the same, a medical prescription was also filed. The Income-tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all the High Courts including this court had the occasion to deal with these questions. The view taken by the majority of the High Courts including this court is that where the Income-tax Officer refuses to condone the delay in filing the declaration contemplated under section 184(7) of the Act (Form No. 12 as prescribed under the Rules) and thereby the firm becomes disentitled for continuation of registration for that particular assessment year, such an order is appealable either under section 246(c) or under section 246(j) of the Act or under both. In a catena of cases decided by this court it is the consistent view. The earliest decision of this court on this point is in the case of Madhur Jalpan v. CIT [1983] 143 ITR 351. A contrary view has been taken by the Orissa High Court and the Kerala High Court in the case of CIT v. Pohop Singh Rice Mill [1981] 132 ITR 390 (Orissa) and in the case of CIT v. Pushpaka Travels [1985] 152 ITR 717 (Ker). This court, on a detailed consideration of the contrary view, has specifically dissented therefrom. The Income-tax Act does not define "firm". Section 2(23), inter alia, provides that "firm" will have the same meaning as assigned to it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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." A bare reading of the aforesaid provisions will show that if a firm wants to avail of the benefits of registration, i.e., wants to be assessed to tax in the status of a registered firm, it has to file the prescribed declaration in Form No. 12 within the time prescribed and if it fails to file the declaration within the time, then it has to seek condonation of delay by showing sufficient cause to the Income-tax Officer. It is implicit in the powers conferred on the Income-tax Officer under the aforesaid provisions not to condone the delay if he does not feel satisfied with the sufficiency of cause shown by the firm to justify the delay in filing the declaration. Consequence of refusal to condone the delay would be to disentitle the firm to continuance of registration in that particular assessment year. In a case where the firm either fails to file an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e referred to above seems to be correct. But then the Kerala High Court has failed to take into account the view of this court taken in the case of Madhur Jalpan [1983] 143 ITR 351, where it has been specifically held on a detailed consideration of all the relevant provisions that, in such a situation, an order refusing to condone the delay in filing Form No. 12 under the provisions of section 184(7)(ii) of the Act would amount to an order affecting the status of the firm and, as such, it would be appealable under section 246 (c) of the Act. Now, the question arises as to what is the legal meaning of the word "status" for the purpose of the Income-tax Act. As per Mozley and Whiteley's Law Dictionary, "status" means the condition of a person in the eye of law. Black's Law Dictionary describes "status" to mean the rights, duties, capacities and incapacities which determine a person to a given class. In the case of Duggamma v. Ganeshayya, AIR 1965 Mys 97, it has been held that the status of a person means his personal legal condition, that is to say, a man's legal condition only so far as his personal rights and burdens are concerned, to the exclusion of his proprietary relation. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
