SPECIAL STEEL PRODUCTS vs COMMISSIONER OF INCOME TAX and Another

N. V. Balasubramanian, J.

The question of status of the petitioner-whether is should be assessed in the status of a registered firm or an unregistered firm under the relevant

provisions of the Income Tax Act, 1961, arises in the writ petition.

The petitioner is a firm engaged in the manufacture of C.R.G.O. sheets for distribution transformers on job work basis. The assessment year,

with which we are concerned is the assessment year 1991-92, the relevant accounting year ended on 31-3-1991. The writ petitioner (hereinafter

referred to as ""the assessee"") filed its return of income for the assessment year 1991-92 belatedly on 26-9-1994, when the due date for return of

income for the said assessment year 1991-92 u/s 139(1) of the Income Tax Act, 1961 (hereinafter referred to as ""the Act""), was 31-8-1991.

Though the assessee filed its return of income belatedly, the belated return of income was regularised by the Income Tax Officer by the issue of a

notice u/s 148 of the Act, and the assessee''s returned income of Rs. 1,45,790 was accepted and the assessment was also completed on the basis

of the returned income without making any further addition to the returned income.

The assessee filed along with its belated return a declaration in No. 12 and claimed the benefit of continuation of registration of the firm. The

assessee explained the delay in filing the return of income and the declaration stating that its chartered accountant, who was looking after the

finalisation of its accounts, has left the practice abruptly and settled abroad. It was also stated that one of its partners, who was looking after the

affairs of the firm, also retired during the financial year 1991-92 and the accountant in charge of the firm died due to sudden illness. The Income

Tax Officer carefully examined each one of the reasons given by the assessee and held that the reasons given by the assessee would not be

regarded as sufficient cause for the delay in filing the declaration. He held that the demise of the accountant had nothing to do with the delay in filing

the declaration and insofar as the retirements of the managing partner is concerned, he retired subsequent to the close of the accounting year on

10-2-1992, and he was the managing partner upto 31-1-1992. He also held that the leaving of the practice by the chartered accountant would not

constitute sufficient cause either for the delay in filing the return or in filing the requisite declaration for continuation of the registration of the firm. In

effect, he refused to grant the benefit of continuation of registration of the firm and completed the assessment in the status of an unregistered firm.

The assessee challenged the order of the Income Tax Officer refusing to grant the registration by filing a revision against the order before the

Commissioner u/s 264 of the Act. The assessee besides the reasons given before the Income Tax Officer for the delay in filing the return, also

relied upon a circular issued by the Central Board of Direct Taxes (CBDT) and submitted that according to the circular where the declaration was

filed along with the delayed return and if the assessment made by the Income Tax Officer was not one u/s 144 of the Act, the declaration filed

along with the belated return should be accepted. The Commissioner however, held that the assessee has not adduced sufficient reasons for the

delay in furnishing the declaration. He also held that the reliance on the Board''s Circular was misplaced as the return filed was not a valid return

and the circular would apply to the belated valid return. He, therefore, held that there was no justification to interfere with the order of the Income

Tax Officer. Against the order of the Commissioner the present writ petition has been filed.

The petitioner in the affidavit filed in support of the writ petition has repeated the same reasons given before the authorities for the delay in filing

the return and Form No. 12. It is also stated that the reasons given for the delayed filing of the return were rejected without application of mind by

the Commissioner. It is also stated that the circular issued by the Central Board of Direct Taxes, dated 26-6-1965 (Board''s F.No. 26/3/65-

IT(AI) dated 26-6-1965-Ed.) is applicable. Learned counsel for the petitioner submitted that the decision of the Madhya Pradesh High Court in

the case of Mukunchand Baid Vs. Commissioner of Income Tax, would apply wherein the Madhya Pradesh High Court applied the circular of the

Commissioner of Wealth Tax, dated 26-6-1965, and held that where the filing of the return was delayed and when the Income Tax Officer has not

made ex parte assessment u/s 144 of the Act, the declaration filed in Form 12 along with the return would be taken as sufficient compliance with

the provisions of section 184(7) of the Act and the renewal of registration should be granted.

Mr. C.V. Rajan, learned junior standing counsel for the Income Tax (Department) submitted that u/s 184(7) of the Act, the assessee should

have furnished the declaration within the time prescribed u/s 139(1) of the Act and if the assessing officer was satisfied that the filing of Form No.

12 was delayed and if it was established that it was prevented by sufficient cause from the filing of the return within the time prescribed u/s 139(1)

of the Act, it is open to him to furnish the declaration at any time before the assessment is made. Learned counsel for the respondents submitted

that the Commissioner has held that the reasons given by the assessee are not sufficient to condone the delay in filing the declaration and the return

was not filed within the time-limit prescribed u/s 139(4) of the Act, and the declaration filed along with an invalid return cannot be regarded as a

valid declaration at all. Learned counsel also submitted that since the return was filed beyond the time-limit prescribed u/s 139(4) of the Act, the

decision of the Madhya Pradesh High Court in Mukunchand Baid v. CIT (supra) has no application to the facts of the case.

I have carefully considered the submissions made by the learned counsel for both the parties. Section 184 of the Act deals with the registration

of the firms under the Income Tax Act and the provisions of section 184(7) of the Act, which are relevant for the purpose of the case, read as

under:

Where registration is granted or is deemed to have been granted to any firm for any assessment year, it shall have effect for every subsequent

assessment year.

Provided that:

(i) there is no change in the constitution of the firm for the shares of the partners as evidence by the instrument of partnership on the basis of which

the registration was granted, and

(ii) the firm furnishes, before the expiry of the time allowed under sub-section (1) of section 139 for furnishing the return of income for such

subsequent assessment year, a declaration to that effect, in the prescribed form and verified in the prescribed manner, so, however, that where the

assessing officer is satisfied that the firm was prevented by sufficient cause from furnishing the declaration within the time so allowed, he may allow

the firm to furnish the declaration at any time before the assessment is made.

A close reading of the section shows that where the registration was granted to any firm for any assessment year, it shall have effect for every

subsequent assessment year, provided there is no change in the constitution of the firm and the firm furnishes the requisite declaration within the

time allowed u/s 139(1) of the Act. The assessing officer empowered u/s 184(7) of the Act to accept the belated declaration filed subject to the

condition that the declaration was filed before the assessment is made, if the assessing officer is satisfied that there was sufficient cause which

prevented the firm from furnishing the declaration within the time allowed u/s 139(1) of the Act.

On the facts of the case, the assessment year is 1991-92 and the due date for filing return was 31-8-1991, but the return was filed on 26-9-

1994. Undoubtedly there was a delay in filing return and the Income Tax Officer issued a notice on 21-8-1995, u/s 148 of the Act and regularised

the return. I am of the view that in the absence of the notice u/s 148 of the Act, the return would have been treated not as a valid return. However,

then the belated return filed was regularised by the Income Tax Officer by the issue of notice u/s 148 of the Act, I hold that the return is a valid

return and it is only on the basis of that the return filed was a valid return, the assessment was completed. I hold that once the return filed is treated

as a valid return, it should be treated as a valid return for all purposes of the Act. In this context, the circular of the Central Board of Direct Taxes,

dated 26-6-1965, is relevant and the said circular reads as under :

Income Tax Act, 1961-Renewal of registration, filing of declaration u/s 184(7).-A declaration u/s 184(7) of the Income Tax Act for continuance

of registration has to be furnished by a firm along with its return of total income. If the return of income is delayed and no ex parte assessment is

made by the Income Tax Officer u/s 144 of the Income Tax Act, the declaration filed along with the belated return would constitute sufficient

compliance with the provisions of section 184(7).

Section 185(2) of the Income Tax Act already provides that the Income Tax Officer shall not reject an application for registration merely on the

ground that the application is not in order but shall intimate the defect to the firm and give it an opportunity to rectify the defect within a period of

one month from the date of such intimation. Although a specific provision to this effect has not been made in sub-section (7) of section 184 in

regard to declaration filed for continuance of registration the Board are of the view that in consonance with the spirit of the provision in section

185(2), a declaration u/s 184(7) should not be rejected merely on the ground that it is technically defective.

The Income Tax Officer, may, therefore, be instructed that the procedure u/s 185(2) should also be followed with regard to defective declarations

u/s 184(7)

According to the circular, when there is a belated filing of return, the declaration made u/s 184(7) of the Act filed along with the return would

constitute sufficient compliance with the provisions of the Act for the continuance of registration and the only condition mentioned in the circular to

invoke the benefit of the circular is that the assessee should not suffer an ex parte assessment u/s 144 of the Act. Admittedly, in this case, there was

no ex parte assessment and the declaration was also filed along with the return in question u/s 148 of the Act. I hold that once the return was

accepted and the assessment was made on the basis of the return, the declaration for continuance of registration should have been taken to have

been filed in compliance with the provisions of section 184(7) of the Act. It is well settled that the circulars of the Central Board of Direct Taxes

are binding on the officers of the department. The circular relied upon is a benevolent circular intended to grant certain benefits to the assessee and

in my view, the circular should be liberally construed, but the conditions mentioned therein should be strictly construed and fully complied with. A

fair reading of the circular shows that it intends to give certain benefits to the assessee. The view of the Commissioner that the circular would apply

only in case where the return was filed u/s 139(4) of the Act is a narrow view to take on the construction of the circular. I agree with Mr. C V.

Rajan learned counsel for the revenue that the circular should not be construed as a statute, but that does not mean that the court should not

examine the circular in its entirety and give a reasonable construction and provide a natural meaning to the words found in the circular. The circular

does not say that it would only apply to a return filed u/s 139(4) of the Act, as the expression employed in the circular is that would ""apply to a

belated return"". The cause for the delay may vary and the circular is not restricted to a return filed u/s 139(4) and the natural expression employed

belated return"" is fairly wide enough to encompass the belated return filed in pursuance of a notice u/s 148 of the Act as well. Moreover, if the

view of the revenue that the circular would apply to a declaration filed before the time-limit prescribed for filing the return u/s 139(4) of the Act is

accepted, then, there is no need for the issue of the circular as the said benefit is already available to the assessee under the provisions of section

184(7) of the Act. That apart, the conditions prescribed that the return filed should be a belated return and there should not be an ex parte

assessment u/s 144 of the Act clearly give a clue that the circular is meant to cover certain other situation and contingencies. No doubt, it is true

that the Board cannot issue a circular against the provisions of the Act. But, it is equally well settled that it can relax the rigour of law or grant relief

which is not filed in terms of statutes. The condition prescribed in the circular that there should not be an ex parte assessment u/s 144 of the Act

gives an indication that if the assessee had filed the return, though belatedly, the declaration filed should be accepted for the continuation of

registration and the said condition shows that it is permissible for the Income Tax Officer to look into the order of assessment. The obvious

intention of the circular is that because of the delay in filing the return, the benefit of continuance of registration need not be denied to the assessee,

as the sudden interruption in the status and change over from the status of registered firm to the status of unregistered firm and the grant of fresh

registration in a subsequent year, on satisfaction of conditions, would pose problem not only to the assessee, but also to the department, in the

matter of carry forward of losses, depreciation and other allowances, and hence, probably with a view to mitigate the hardship that may be faced

due to sudden change of status, the Board had obviously issued the circular prescribing two conditions, viz, (1) the return is belated, and (ii) there

was no ex parte assessment, meaning thereby that the assessee has not contravened other provisions of the Act before the completion of

assessment and that is the reason for the reference to the condition regarding the absence of best judgment u/s 144 of the Act. Further, if a best

judgment assessment is made, it will have certain other consequences with which we are not concerned. The circular, in my view, has not amended

the provisions of section 184(7) of the Act, but merely states that if the twin requirements mentioned in the circular are satisfied, the Income Tax

Officer would be well advised to treat the belated declaration as a valid declaration and not to reject the same on grounds of delay. I, therefore,

hold that if the two conditions prescribed by the Board are satisfied, the assessee would be entitled to the benefit of the circular, irrespective of the

nature of the return, whether it is a return filed u/s 139(4) or a return filed u/s 148 of the Act. I hold that the view of the Commissioner that the

return is not a valid return is not acceptable, as the return filed was regularised by the issue of notice u/s 148 of the Act, and once it is taken to be a

valid return, the return filed is a valid return not only for the purpose of assessment, but it would be valid for all purposes of the Act including for

the purpose of continuation of registration u/s 184(7) of the Act.

I agree with the decision of the Madhya Pradesh High Court in Mukunchand Baid v. CIT (supra) and hold that the circular of the Central

Board of Direct Taxes, dated 26-6-1965, would apply since ex parte assessment was not made and the declaration was filed with the return and

that would constitute sufficient cause within the meaning of the provisions of section 184(7) of the Act and the refusal to renew the registration is

not justified on the facts of the case.

In the view I have taken, it is not necessary to examine the question and express any opinion, whether the Commissioner was justified in

holding that the assessee has not shown any sufficient cause for the delay in filing the declaration. I, therefore, hold that the renewal of registration

to the assessee-firm could be granted to the petitioner. Accordingly, the order of the Commissioner is set aside and I direct the second respondent

to renew the registration to the petitioner and make proper adjustment in the order of assessment. The writ petition is allowed. Rule nisi is made

absolute. No. costs. Consequently, no order is necessary in W.M.P.No. 24150 of 1997.