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TMI Blog1980 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be filed along with a return which became due on 30th of June, 1971. No extension for the filing of the return having been obtained from the ITO, the declaration was, admittedly, filed beyond time. The delay was not condoned and the ITO refused to continue the registration. An appeal was carried to the AAC, but he refused to entertain the same on the ground that an order under s. 184(7) of the Act was not open to appeal under s. 246 of the Act. On assessee's further appeal to the Tribunal, it was contended that the AAC had overlooked the amendment to s. 246(j) which had specifically provided for an appeal against the order of the ITO under s. 185(3) of the Act. It was further submitted that s. 184 did not provide the procedure for disposing of the various matters for which provision was made therein and s. 185 laid down the procedure. Refusal to allow the benefit of registration virtually came under s. 185(3) of the Act and as s. 246(j) provides an appeal against such an order, the AAC was wrong in refusing to exercise jurisdiction. On behalf of the revenue, it was contended that s. 185(3) applied to a case where the defect was otherwise than pertaining to delay and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment. Post-amendment. " 184. (7) Where registration 184. (7) Where registration is granted to any firm for any granted to any firm for any assessment year, it shall have assessment year, it shall have effect for effect for every subsequent every subsequent assessment year : assessment year: Provided that- Provided that- (i) there is no change in the (i) there is no change in the constitution of the firm or the constitution of the firm or the shares of the partners as evidenced shares of the partners as evidenced by the instrument of partnership by the instrument of partnership on the basis of which the registration on the basis of which the was granted; and registration was granted; and (ii) the firm furnishes, along (ii) the firm furnishes, before with its return of income for the the expiry of the time allowed assessment year concerned, a declaration under sub-section (1) or sub-sec to that effect, in the prescribed form and tion (2) of section 139 (whether verified in the prescribed manner. fixed originally or on extension) for furnishing the return of income for such subsequent assessment year, a declaration to that effect, in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration connected with renewal. Prior to the amendment, there was no such provision in s. 185. We may now refer to the decisions relied upon by Mr. Mohanty in support of his present stand. In the case of Addl. CIT v. Chekka Ayyanna [1977] 106 ITR 313, 316, 317, 318 a Bench of the Andhra Pradesh High Court stated: "Sub-section (7) of section 184 which is relevant for purposes of this case deals with the effect with regard to registration in respect of a firm to which registration had already been granted for any assessment year, and it provides that such a registration granted to a firm for any assessment year should have effect for every subsequent assessment year. Two provisos are added to this sub-section. Proviso (i) is to the effect that there should be 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 for any assessment year. Proviso (ii) gives discretion to the Income-tax Officer and it provides that where under sub-section (1) or sub-section (2) of section 139 time is allowed for furnishing the return of income for such subsequent assessment year, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nform the firm of the, defect and call upon the firm to rectify the defect within a period of one month from the date of such intimation, and if the defect is not rectified within that period, the Income-tax Officer would, by an order in writing declare that the registration granted to the firm in any assessment year would have no effect for the relevant assessment year. Sub-section (4) of section 185 provides that where a firm is registered for any assessment year as envisaged in section 184(7) of the Act, and if the declaration is in order, the Income-tax Officer should record a certificate on the instrument of partnership or on the certified copy submitted in lieu of the original instrument, as the case may be, to the effect that the firm has been registered under the Act for that assessment year. Section 246 of the Act deals with appeals to the Appellate Assistant Commissioner against orders of the Income-tax Officer. A perusal of this section would show that the orders against which appeals could be filed before the Appellate Assistant Commissioner are given in section-wise manner, and clause (j) is relevant for purposes of this case. It provides that any assessee aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der s. 184 of the Act and for the first time discretion has been vested in the ITO for accepting delayed filing of returns on proof of existence of sufficient cause. Bat in regard to the first registration covered by s. 184(4), the Act of 1961 had vested discretion in the ITO. The two decisions of the Madras High Court and the reported decision of this court in New Orissa Traders' case [1977] 107 ITR 553, dealt with cases of rejection of the first registration on the ground of delay. Whatever has been stated in New Orissa Traders' case [1977] 107 ITR 553, would thus have full application also to a matter covered under s. 184(7) of the Act even after the amendment. Limitation is, in fact, not a defect. When an appeal or application is presented beyond the time before the prescribed authority, unless there is scope for condoning the delay and the authority is asked to exercise his jurisdiction to condone the delay and as a fact condones the delay, he has no jurisdiction to deal with the matter. Defects dealt with under s. 185 are, therefore, defects in an otherwise maintainable appeal and it becomes difficult to take within the ambit of "defect", delay which affects jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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