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C.I.T. Lucknow v. M/S. Brahm Swarup Tandon & Co. Amroha - INCOME TAX REFERENCE No. 52 of 1985 [2004] RD-AH 452 (5 August 2004)


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Court No. 37

I.T.Reference No. 52  of  1985

The Commissioner of Income Tax, Lucknow.......................Appellant


M/s Brahm Swarup Tandon & Company, Moradabad...............Respondent


Hon'ble R.K.Agrawal, J.

Hon'ble K.N.Ojha, J.

The Income Tax Appellate Tribunal, Delhi has referred the following question of law  for opinion to this Court  under Section 256 (1) of the Income Tax Act 1961, hereinafter referred to as the Act:

"Whether the learned Tribunal was justified in law in entertaining the appeal against refusal of registration when no separate order under section 185 was passed by the Income Tax Officer ?"

The reference relates to the assessment year 1976-77. The Income Tax Officer  while making the assessment under section 143 (3) took  the status of the respondent assessee as A.O.P. instead of a registered firm  claimed by the respondent assessee . The assessee preferred one single  appeal against the assessment order and challenged the findings regarding status also.

The appeal was entertained by the Commissioner of Income Tax (Appeals)  who held that the  firm should be treated  as an A.O.P. entitled to the registration . The appeal filed by the Commissioner before the Tribunal failed.

We have heard Shri A.N.Mahajan, learned counsel for the revenue and Sri Murlidhar who has put in appearance for the assessee.

Under Section 246(1) (a) of the Act an appeal lies against the order of assessment as also on the question  where the status under which the assessee has been objected to. The Income Tax Officer in the assessment order itself have changed the status of the respondents  from that of a registered firm to an A.O.P. Thus the single appeal was maintainable.

In the case of Commissioner of Income Tax, West Bengal (V) Vs. Rupa Traders (1979) 118 ITR 412, the Calcutta High Court has held that :-

"Under s. 246 of the I.T.Act, 1961 read with r.45 of the I.T.Rules, 1962, and Form No.35 prescribed under the Rules, where an assessee challenges before the AAC both a best judgment assessment under s. 143 and an order refusing registration under S. 185 relating to more than one assessment year, a single consolidated appeal against the order of assessment as well as the orders refusing registration or renewal of registration is valid."

Similar view has been taken by the Bombay High Court in the case of Commissioner of Income Tax, Bombay City III Vs. Hansa Agencies (1980) 121 I.T.R. 147 and the Gujarat High Court in the case of Patel and Company Vs. Commissioner of Income Tax  (1986) 161 I.T.R  568 and by the Rajasthan High Court in the case of Ansari Jewellers Vs. Commissioner of Income Tax (1987) 167 I.T.R. 380.

We are in respectful agreement with the views taken in the aforesaid cases and hold that a single appeal was maintainable against the order of assessment and refusal to grant registration.

Respectfully following the aforesaid decisions  we answer the question of law referred to us in the negative i.e. in favour of assessee and against the revenue. However, the parties shall bear their own costs.

Dt. 5.8.2004



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