TMI Blog1980 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... rther appeal before the Appellate Tribunal as against the refusal by the Incometax Officer to entertain the application for registration ? " The assessee is a firm and the assessment year with which we are concerned is 1973-74. Registration had been given to the firm for the accounting year which ended on December 31, 1969 (assessment year 1970-71), and continuance of that registration was allowed till the assessment year 1972-73. On November 4, 1972, a deed of dissolution was executed by the four partners of the firm, the accounts of the firm were closed and profit and loss account and balance-sheet were drawn up. On December 2, 1972, three of the erstwhile partners constituted themselves into another firm by a deed executed on that day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 185(1)(b) read with s. 184(4) of the Act and the order concludes with the operative words " In the result, the application for registration is dismissed ", thereby clearly indicating that it was an order passed in exercise of the powers conferred on the ITO by s. 185 of the Act. The assessee preferred an appeal before the AAC complaining against the rejection of his prayer for the grant of registration. That appeal having been dismissed by the AAC, the assessee carried the matter in second appeal before the Tribunal. In that appeal a preliminary objection was taken on behalf of the department that the second appeal did not lie, since the appeal filed by the assessee before the AAC was incompetent inasmuch as the Act does not provide for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the ITO was specifically expressed as one made in exercise of the power conferred by s. 185(1)(b) of the Act. This court in its judgment dated 16th June, 1980, pointed out that there is a well-established principle that where a court or Tribunal acts under an appealable provision of law and passes an order, party is not deprived of the right of appeal, though, on facts, that order should not have been passed under that provision and that the right to appeal depends on what the court or Tribunal actually does, and not what it should have been done. Accordingly, it was held that inasmuch as the ITO had passed the order, the appealability of which was in question in that case, specifically in the exercise of his powers under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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