TMI Blog1980 (6) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... Coch/1976-77: " Whether, on the facts and in the circumstances of the case, the appeal preferred by the assessee to the Appellate Assistant Commissioner against the order passed by the Income-tax Officer declining to condone the delay in the filing of the application for registration and consequently refusing registration for the assessment year 1974-75 was competent ? The assessee is a firm of three partners carrying on business in the name and style " Tirur Medical Hall ". The partnership was constituted under a deed dated November 15, 1967. On May 16, 1974, the assessee filed an application before the ITO in Form No. 11A praying for registration of the firm. Subsequently, the assessee realised that the correct form in which the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee took up the matter in second appeal before the Tribunal. A preliminary objection was raised by the departmental representative before the Tribunal that the order of the ITO refusing to condone the delay was one passed under s. 184(4) of the Act and since the Act does not provide for an appeal against such an order, the appeal preferred by the assessee to the AAC was not competent and consequently the second appeal filed before the Tribunal was also not maintainable. The Tribunal took the view that in the scheme of granting registration to firms the only provision which envisages an order being passed by the ITO is S. 185 and the statute does not contemplate any order being passed by the ITO under S. 184. The decision of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention that, S. 184(4) contemplates an order being passed thereunder either allowing or rejecting the prayer for condonation of the delay in the presentation of an application for registration of a firm and that no appeal is provided for by the statute against such an order, the order annex. " A ", passed by the ITO in the case before us is one specifically expressed by him to be one passed under S. 185(1)(b) of the Act. It is a well-established principle that where a court or Tribunal acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on facts the order should not have been passed under that provision. The right of appeal depends on what the court or Tribunal actua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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