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M/S SURAJ OIL MILLS v. INCOME TAX OFFICER, MANSA - ITA-48-2005  RD-P&H 3344 (22 May 2006)
I.T.A. NO. 48 OF 2005 (O&M)
DATE OF DECISION: 25.05.2006
M/S SURAJ OIL MILLS
INCOME TAX OFFICER, MANSA
CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE RAJESH BINDAL
PRESENT: MR. K.L. GOYAL, ADVOCATE
FOR THE APPELLANT
DR. N.L. SHARDA, ADVOCATE
FOR THE RESPONDENT
The assessee has approached this Court by filing the present appeal against the order dated 28.4.2004 passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar (for short 'the Tribunal') in ITA No. 13(ASR)/1999 for the assessment year 1992-93. Though in appeal seven questions have been framed but at the time of hearing, counsel pressed only following questions: (i) Whether on the facts and in the circumstances of the case, the learned ITAT is justified to uphold the order of assessing officer to refuse to grant the continuation of registration, when once the assessment of the firm has been made by passing order under section 143 (1) ?
(ii) Whether on the facts and in the circumstances of the case, the learned ITAT is justified to uphold the order of assessing officer to refuse to grant the continuation of registration, when the assessment of the partners has already been completed ? (iii) Whether on the facts and in the circumstances of the case, the learned ITAT is justified to uphold the order of assessing officer to refuse to grant the continuation of registration, when the duplicate Form No. 12 has been filed after the notice for discontinuation of Registration was filed and delay was condoned by appellate authority ?
We have heard counsel for the parties for final disposal of the appeal at admission stage itself.
Brief facts, as stated in the appeal, are that the appellant filed Form No. 12 for the assessment year in question on 31.8.1992. The return of income filed by the petitioner was processed under Section 143 (1)(a) of the Income Tax Act, 1961 (for short `the Act') and was accepted as such.
However, after recording the reasons, the case was reopened and notice under Section 148 of the Act was issued for the reason that the capital gain from the sale of land and building has not been declared by the firm. During the course of assessment proceedings under Section 143(3)/148 of the Act, Assessing Officer found that the assessee had not filed Form No. 12, as required under Section 184 (7) of the Act, for continuation of registration for the year in question. Accordingly, a notice to show cause was issued to the assessee on 25.8.1998 as to why the registration of the firm for the year in question should not be disallowed. In response to this notice, the assessee filed written reply on 3.9.1992, stating therein that since return of income for the assessment year in question could not be filed on or before 31.8.1992, the last date of filing of return, the same was filed on 30.9.1992 but Form No. 12 was submitted with the department before 31.8.1992. At the time of filing of the Form, signatures of the receipt clerk were taken on the Peon Book by the counsel but since the old Peon Book was not traceable, it would not be possible to produce the proof of the same at that stage. Considering the plea of the assessee and seeing that he was unable to prove submission of Form No. 12, which was a mandatory pre- requisite for continuation of registration, the Assessing Officer disallowed the registration for the assessment year 1992-93 and accordingly assessed the appellant firm as unregistered firm.
The assessee went in appeal against the order challenging refusal of continuation of registration and also on merits. As far as the appeal of the assessee on the ground of continuation of registration, the CIT (A) accepted the same by holding that the department had failed to adduce evidence in rebuttal to counter the claim of the appellant that the Form No. 12 was not received in the office and secondly when the assessee was asked by the Assessing Officer vide letter dated 25.6.1998, the mistake, if any, committed by the appellant was fully met with the filing of another Form No.12 on 3.9.1998 by the appellant.
The Revenue went in appeal against the order of CIT (A) before the Tribunal. The Tribunal while dealing with the issue set-aside the findings of the CIT (A) and restored that of the Assessing Officer.
The counsel for the appellant submitted that Form No. 12 was submitted by the appellant on 31.8.1992 and the fact that the return of the appellant was processed under Section 143 (1) (a) of the Act on 21.1.1993 treating the appellant as a registered firm, itself shows that Form No. 12 was available on record with the Assessing Officer at the relevant time.
Otherwise in the absence thereof, the return of the appellant would not have accepted as a registered firm. It is further submitted that in any case when the appellant was informed of the alleged defect, the same was cured before the assessment of the appellant took place under Section 143 (3)/148 of the Act. In terms of the provisions of Section 184 (7) of the Act, existing at the relevant time, the Form No.12 could be submitted at any time before the assessment. Another argument raised by the counsel is that the assessment of three partners have already been framed and in case the appellant is also assessed as unregistered firm at this later stage, it will result into double taxation.
On the other hand the counsel for the Revenue submitted that at the time of filing of return by the assessee on 30.9.1992, column No. 13 which provides for information regarding receipt number and date of furnishing of Form No.12, was left blank by the assessee. This itself showed that in fact no Form was ever submitted by the assessee within the time permitted under Section 184 (7) of the Act and in the absence thereof, the registration of the firm could not be continued as the provisions of Section 184 (7) of the Act are required to be complied with strictly and in case of failure, the assessee is not entitled to the benefits of a registered firm. The pleas being raised by the assessee that he had in fact submitted Form No.12 on 31.8.1992 is merely an after thought. The order passed by the Tribunal is perfectly valid having been passed after considering the material on record and the explanations furnishing by the assessee.
We do not feel impressed with the arguments of learned counsel for the Revenue for the reason that admittedly the assessee filed his return of income on 30.9.1992 and the same was accepted as such under Section 143 (1)(a) of the Act on 21.1.1993, thereby accepting the status of the assessee as registered firm which was not possible unless the Assessing Officer was satisfied about the requirements for continuation of registration been complied with. As far as the argument of the learned counsel for the Revenue regarding non-mentioning of information regarding submission of Form No. 12 in Column No. 13 of the return, it is suffice to observe that in case the assessee had not submitted Form No. 12 either on 31.8.1992 or with the return, the Assessing Officer was required to give notice to the assessee for rectification of the defects in the return under Section 139 (9) of the Act., which, admittedly, was not given. This would necessarily mean that Form No. 12 was available with the Assessing Officer when the return of income of the assessee was dealt with under Section 143 (1)(a) of the Act. This important aspect of the matter was totally ignored by the Tribunal while deciding the issue against the assessee.
For the reasons recorded above, we answer question No. 1 in the negative i.e. in favour of the assessee and against the Revenue.
In view of our answer to question No.1, other questions framed by the assessee do not require consideration.
The appeal is disposed of in the manner indicated above.
May 25, 2006 (ADARSH KUMAR GOEL)
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