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1985 Supreme(Pat) 144
PATNA HIGH COURT
Uday Sinha and Nazir Ahmad JJ.
Commissioner Of Income Tax
Versus
Bishwanath Khirwal
Taxation Case No. 101 of 1976 ;
Decided On : APRIL 22, 1985
The declaration in Form No. 12 for continuation of registration of a firm under Sec.184(7) of the Income-tax Act, 1961 can be filed along with the return, and the time granted for submission of return under Section 139(1) or 139(2) of the Act will also be granted for purposes of declaration of continuation of the registration.
Headnote:
INCOME TAX - Continuation of registration of firm - Declaration under Sec.184(7) of the Income-tax Act, 1961 - Extension of time for filing return - Whether the Tribunal was justified in holding that there was continuation of registration of the assessee firm in the absence of any order of the Income-tax Officer extending the date of furnishing the return under Sec.139(1) of the Act.
Fact of the Case:
The assessee, a registered firm, filed a declaration under Sec.184(7) of the Act on February 11, 1972, for continuation of registration of the firm. The due date for filing the return was up to September 30, 1971. The assessee had applied for extension of time for filing of return up to March 31, 1972. The Income-tax Officer refused continuation of registration for the assessment year, holding that the assessee had not applied for extension of the date for furnishing the declaration in Form No. 12.
Finding of the Court:
The Appellate Assistant Commissioner and the Appellate Tribunal held that the assessee was justified in presuming that the Income-tax Officer had extended the time for filing the return till March 31, 1972, as the assessee had applied for extension of time and the Income-tax Officer did not reject the prayer or communicate the rejection to the assessee. The Tribunal held that the declaration in Form No. 12 filed along with the return was within time and that there was continuation of registration of the assessee-firm.
Issues: Whether the Tribunal was justified in law in holding that there was continuation of registration of the assessee firm in the absence of any order of the Income-tax Officer extending the date of furnishing the return under Sec.139(1) of the Act.
Ratio Decidendi: The proviso to Sec.184(7) of the Act, as amended with effect from April 1, 1971, provides that the declaration in Form No. 12 for continuation of registration can be filed along with the return. Even if the amended proviso is not applicable, the proviso as it existed before April 1, 1971, also laid down that the declaration in Form No. 12 could be filed along with the return. In the present case, the assessee filed the declaration in Form No. 12 along with the return on February 11, 1972, which was within the extended time for filing the return. Therefore, the Tribunal was justified in holding that there was continuation of registration of the assessee-firm.
Final Decision: The question referred to the High Court is answered in the affirmative and in favour of the assessee and against the Revenue.
Nazir Ahmad, J.
1. A statement of the case has been submitted by the Income-tax Appellate Tribunal, Patna Bench " A ", Patna, under Sec.256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), referring the following question of law in view of the direction of this court for our opinion :
"Whether, on the facts and in the circumstances of the case, in the absence of any order of the Income-tax Officer extending the date of furnishing the return under Sec.139(1) of the Income-tax Act, the Tribunal was justified in law in holding that there was continuation of registration of the assessee firm ?"
2. The facts of the case may be briefly stated. The assessee was being assessed as a registered firm for several years. In respect of the assessment year 1971-72, the assessee filed a declaration under Sec.184(7) of the Act on February 11, 1972, for continuation of registration of the firm. According to the requirement of law, such a declaration had to be filed along with the return. The due date for filing the return was up to September 30, 1971. The assessee had applied for extension of time for filing of return up to March 31, 1972. The Income-tax Officer observed that the assessee had not applied for extension of the date for furnishing the declaration in Form No. 12. According to him, the condition laid down under proviso (ii) of Sec.184(7) of the Act had not been fulfilled by the assessee and, hence, the continuation of registration was refused for the assessment year. The order of the Income-tax Officer has been annexed and marked as annexure-A, forming part of the statement of the case.
3. When the matter came before the Appellate Assistant Commissioner, he found that the assessee had applied for extension of time for filing the return by registered post on September 8, 1971. Another application was sent on December 3, 1971. The return was filed on February 11, 1972, and in this return it was stated that Form No. 12 claiming continuation of registration was attached. It was contended before the Appellate Assistant Commissioner that the time granted for filing the return has also to be taken into consideration for the purpose of filing of the form for continuation of registration. In view of the proviso to Sec.184(7) of the Act, as amended with effect from April 1, 1971, the Appellate Assistant Commissioner held that the declaration filed in Form No. 12 along with the return had to be treated as within time. The Appellate Assistant Commissioner, therefore, granted continuation of registration of the firm. The order of the Appellate Assistant Commissioner has been annexed and marked as annexure-B, forming part of the statement of the case.
4. The Department appealed before the Appellate Tribunal and it was contended on behalf of the Department that the assessee had not filed any application in Form No. 6 for extension of time for filing the return. On behalf of the assessee it was contended that the assessee had properly applied for extension of time for filing the return and the assessee held a receipt for having sent the application by registered post. The Appellate Tribunal was of the view that the Appellate Assistant Commissioner was satisfied after looking into the evidence that the assessee had applied for extension of time for filing the return and so the Appellate Tribunal held that the amended provision of Sec.184(7) of the Act applied and they agreed with the finding of the Appellate Assistant Commissioner that the continuation of registration was to be allowed to the assessee. The order of the Appellate Tribunal has been annexed and marked as annexure-C, forming part of the assessment of the case.
5. The Income-tax Officer has not mentioned about the application in Form No. 6 of the assessee. The Income-tax Officer only pointed out that the declaration for continuation of registration under Sec.184(7) of the Act was filed on February 11, 1972, in Form No. 12 for continuation of the registration
