Commissioner of Income Tax vs Brahm Swarup Tandon and Co.

The Income Tax Appellate Tribunal, Delhi has referred the following question of law for opinion to this court u/s 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 u/s 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 u/s 143(3) took the status of the respondent assessee of association of persons. 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 CIT(A) who held that the firm should be treated as an association of persons. 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.

u/s 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 association of persons. Thus, the single appeal was maintainable.

In the case of Commissioner of Income Tax Vs. Rupa Traders, , the Calcutta High Court has held that :

"Under section 246 of the Income Tax Act, 1961 read with rule 45 of the I.T. Rules, 1962, and Form No. 35 prescribed under the Rules, where an assessee challenges before the Appellate Assistant Commissioner both a best judgment assessment u/s 143 and an order refusing registration u/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 (p. 412)

Similar view has been taken by the Bombay High Court in the case of Commissioner of Income Tax, Bombay City III Vs. Hansa Agencies, and the Gujarat High Court in the case of Patel and Company Vs. Commissioner of Income Tax, and by the Rajasthan High Court in the case of Ansari Jewellers v. CIT (1987) 167 ITR 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.