An application for extension of time for filing a return must be filed before the statutory period lapses, and grant of extension of time cannot be assumed.

1. These are two references under Sec.256(1) of the Income-tax Act, 1961 (hereinafter to be referred to as "the Act"). In these references, we are concerned with the assessment year 1971-72.

2. The assessee is a partnership firm. For the assessment year 1971-72, it applied for continuation of registration in Form No. 12 along with the return for the assessment year 1971-72. The return and the application for continuation of registration were filed on December 3, 1971. In terms of Sec.139(1)/ 139(2) of the Act, the assessee had to file the declaration in Form Xo. 12 for continuation of registration by September 30, 1971. The assessee contended before the Income-tax Officer that it had sent an application in Form No. 6 by registered post which had been acknowledged by his office on October 4, 1971. No application, however, was available in the office nor was any evidence adduced in regard to the contents of the application. It is not in controversy that no order extending the time for filing the return was passed by the Income-tax Officer. The Income-tax Officer, therefore, rejected the application for registration.

3. The assessee, being aggrieved by the order of the Income-tax Officer rejecting the prayer for continuation of registration of the partnership firm, appealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner accepted the stand of the assessee and directed the Income-tax Officer to allow continuance of registration to the firm. The Appellate Assistant Commissioner was of the view that since the application in Form No. 12 had been filed within the extended period for submission of return till December 31, 1971, the application of the assessee for continuance of registration could not be rejected. This view of his was based upon the fact that the assessee had produced the acknowledgment by registered post dated October 4, 1971. The assessees claim having been accepted, the Revenue filed an appeal before the Income-tax Appellate Tribunal which was numbered as I.T.A. No. 446 (Pat) of 1975-76. The Tribunal observed that there could be no doubt that the application in Form No. 6 was sent by the assessee to the Income-tax Officer and once it was found that the application for extension of time had been made, the assessee was justified in being of the view that time had been extended as prayed for by the assessee. Thereafter, the Revenue filed an application under Sec.154 of the Act for rectification of his order, inasmuch as the application for extension not having been filed by September 30, 1971, the assessee could not claim the benefit of extension of time. The Tribunal rejected this application. The order on this application was treated as a miscellaneous order. The Revenue, having lost on the question in regard to the registration of the firm, filed an application under Sec.256(1) of the Act. Hence the present reference before us.

4. The questions referred to us for our opinion are the following :

"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the appeal by the assessee was properly entertained by the Appellate Assistant Commissioner ?

2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in allowing continuation of registration to the firm ? "

5. The first question relates to the maintainability of the appeal by the assessee before the Appellate Assistant Commissioner. In our view, the Tribunal was correct in holding that the appeal by the assessee was properly entertained by the Appellate Assistant Commissioner. This view of ours is concluded by a Bench decision of this court in the case of CIT V/s. Gyanchand Bedi [1986J 163 ITR 693, where it was held that an order refusing registration is appealable on the basis that it affects the status of the assessee. We see no reason to differ from the view taken in the aforesaid decision to which one of us (Uday Sinha J.) was a party.

6. The