The main legal point established in the judgment is that the order of the Income-tax Officer in refusing to condone the delay in filing the declaration in Form No. 12 and consequently assessing the firm as unregistered is appealable under both section 246(1)(c) and section 246(1)(j) of the Income-tax Act.

Jagannatha Shetty, J.

1. This is a reference under section 256(1) of the Income-tax Act, 1961 (the "Act"). The following question, at the instance of the Revenue, has been referred by the Income-tax Appellate Tribunal, Bangalore Bench :

"Whether in law the Appellate Tribunal is justified in holding that an appeal lies from the order of the Income-tax Officer rejecting the assessee's declaration in Form No. 12 for continuation of registration ?"

2. The assessee is a firm in respect of which the Income-tax Officer had granted registration for the years earlier to 1975-76. For the assessment year 1975-76, the assessee filed the return of income along with a declaration in Form No. 12 on August 30, 1975. The return was due on June 30, 1975. There was thus a delay of two months in filing the return and Form No. 12. The Income-tax Officer asked the assessee to give reasons for the belated filing of Form No. 12. The assessee did not reply to the notice. On March 29, 1976, the Income-tax Officer assessed the firm as an unregistered firm by refusing renewal of registration The order was made in the following terms :

"Order under section 185 :

The assessee has filed Form No. 12 along with the return of income on August 30, 1975. There is a delay in filing the return as well as Form No. 12 by 2 months. A letter to the assessee calling far the assessee's explanation for late filing of Form No. 12 was issued. There is no response to the said letter till date. Therefore, renewal of registration is refused and the status of the assessee is taken as that of unregistered firm.

(Sd.)

A. V. Sreenivas Iyengar,

VIth Income-tax Officer,

Hubli."

3. Against the said order, the assessee preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner held that the appeal was not maintainable under section 246, since the order of the Income-tax Officer although purports to have been passed under section 185 really falls under section 184(7) of the Act, inasmuch as the Income-tax Officer had refused to condone the delay in filing Form No. 12 for continuation of registration. So stating, the Appellate Assistant Commissioner dismissed the appeal as incompetent.

4. In the second appeal preferred by the assessee, the Appellate Tribunal, following the decision of the Gujarat High Court in CIT v. Dineshchandra Industries, held that the appeal before the Appellate Assistant Commissioner was maintainable and it directed the Appellate Assistant Commissioner to rehear the appeal on merits. As a preliminary to the consideration of the question raised, it would be necessary to advert to the relevant provisions in the Act.

5. Section 184(1) provides for filing an application for registration of a firm. Section 184(4) prescribes the time-limit within which the application for registration must be made. The proviso thereunder confers power on the Income-tax Officer to accept the belated application on sufficient cause being shown by the assessee. Section 185(1) confers power on the Income-tax Officer to grant or refuse registration depending upon his satisfaction as to the existence of a genuine firm as disclosed in the instrument of partnership. If the Income-tax Officer is satisfied about the existence of a genuine firm, he must grant registration. Section 184(7) provides that the registration granted for any assessment year shall have effect for every subsequent assessment year provided there has been no change in the constitution of the firm and the assessee files the necessary declaration in the prescribed form (Form No. 12) within the stipulated period. Proviso to Section 184(7) confers power on the Income-tax Officer to entertain a belated application if there is sufficient cause shown by the assessee.

6. Section 185(2) provides that if the application for registration is not in order, the Income-tax Officer must grant an opportunity to the firm to rectify the defect and if the defect is not rectified within the period stipu