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Judgment
Dr. B.P. Saraf, Chief Justice
By this reference under Section 256(1) of the IncomeTax Act, 1961 (""Act""), the IncomeTax Appellate Tribunal, Amritsar (""Tribunal"") has
referred the following question of law to this Court for opinion at the instance of revenue:
Whether. on the facts and in the circumstances of the case, the Tribunal is right in law in holding that an appeal was maintainable before the
Appellate Assistant Commissioner?
This reference pertains to the assessment year 197475. The controversy is about the maintainability of appeal under Clause (j) of Section 246 of
the IncomeTax Act. 1961 (""Act"") against an order of the IncomeTax Officer refusing to condone delay in filing an application for registration of the
firm under Section 184(4) of the Act.
At one point of time, there was a divergence of the opinion on this point. That controversy, however, has now been set at rest by the decision of
the Supreme Court in CIT v. Ashoka Engineering Co. (1992) 194 ITR 645. In that case, the Supreme Court, on consideration of the provisions of
Section 185 of the Act. held that cases where registration is refused for the reasons set out in Section 184(4) or (7) are really cases where there is
an order refusing registration to the firm by rejecting its application within the meaning or Section 185(2) or (3). This decision was followed by the
Supreme Court in CIT v Satyanarayan Saw Mills (1996) 8 SCC 4 in that case. Form No. 12. seeking renewal of registration was not tiled along
with the return but at a later point of time. The IncomeTax Officer refused to condone the delay in filing the said form, against which order true
assessee preferred an appeal. The question arose whether the said appeal was maintainable. The Tribunal held that it was maintainable which
opinion was affirmed by the Andhra Pradesh High Court. Revenue appealed to the Supreme Court. The Supreme Court, following its earlier
decision in CIT v. Ashoka Engineering Co. (Supra), dismissed the appeal and held that the appeal was maintainable.
In view of the above decisions of the Supreme Court the controversy in regard to the maintainability of appeal under Section 246(j). later
renumbered as 246(g), against an order of refusal of registration or renewal of registration on the ground of delay in filing the application for that
purpose under Section 184(4; or (7) is no more res Integra. Law is now well settled that such an appeal is maintainable.
From the above discussion, it is clear that the Tribunal was justified in holding that appeal was maintainable against the order of the IncomeTax
Officer refusing to condone the delay in filing an application for registration of the firm, because such an order, in essence. was an order refusing to
register the firm on that ground, under Section 185(1) (b) of the Act. which is appealable under Section 246(j) (as it stood at the material time).
6 Accordingly, the question referred to us is answered in the affirmative, that is. in favour of the assessee and against the revenue. On the facts and
in the circumstances of the case, there shall be no order as to costs.