R.K.Agrawal, J. - (1.) The Tribunal, Allahabad, has referred the following questions of law under Section 256(1) of the IT Act, 1961 (hereinafter referred to as "the Act"), for opinion to this Court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the omission to sign the declaration under Section 184(7) on Form No. 12 by two out of five partners was treatable as a defect within the meaning of Section 185(3) of the IT Act, 1961 ? 2. If the answer to question No. 1 be in the affirmative, whether the Tribunal was also justified in taking the view that the said defect could be removed even beyond 28th Feb., 1980, i.e. beyond one month of the service of the notice dt. 25th Jan., 1980, pointing out the defect ?"
(2.) Briefly stated, the facts giving rise to the present reference are as follows.; The assessee was a registered firm till the asst. yr. 1978-79 when renewal of registration was granted to it under Section 184(7). For the asst, yr. 1979-80 in question, the assessee filed an application in Form No. 12 on 26th June, 1979, signed by only three partners even though the firm consisted of five partners. The ITO, thereupon, issued a notice dt. 25th Jan., 1980, to the assessee to show cause as to why the declaration form may not be rejected and its status be taken as that of an unregistered firm. The said notice was served on the assessee on 29th Jan., 1980. The assessee in its reply dt. 3rd Oct., 1980, explained that the signature of the remaining two partners were left by an oversight. It filed a revised Form No. 12 also on the same day signed by all the five partners. However, the ITO took the view that under Section 185(3), the omission to sign the Form No. 12 was not covered. He also took the view that in any case, the omission could be made good by 28th Feb., 1980, i.e., within one month of the service of the notice on the assessee but not afterwards. Accordingly, he rejected the assessee's application and took its status as that of an unregistered firm. The assessee being aggrieved, came up in appeal before the AAC. It was contended on behalf of the assessee that the ITO should not have ignored the declaration filed by the assesses-on 3rd Oct., 1980, and that the delay in filing the revised Form No. 12 should have been condoned. It was explained that the fresh declaration in Form No. 12 could not be filed earlier because of the non-co-operation of the two retiring partners who signed the deed after great persuasion by their relatives, and friends. It was also pointed out that two partners, namely, Sarvasri Krishna Prakash and Ram Kishore had retired from the firm w.e.f. 21st Sept., 1979. The signature of the partners Sarvasri Vipin Chandra and Navin Chandra were stated to have been left by an oversight. It was said that the fresh declaration was delayed because the retiring partners refused to sign the fresh deed, The AAC accepted the contention raised on behalf of the assessee and allowed the registration. The Revenue being aggrieved preferred an appeal before the Tribunal. The Tribunal was of the opinion that in view of Sub-Sections (2) and (3) of Section 185 of the IT Act, 1961, the registration could not be refused on account of defects in the application for registration which could be cured and that an opportunity should be afforded to the firm to remove the defect, if. any. The Tribunal noticed that the assessee had shown that the fresh declaration in Form No. 12 could not be made earlier than 3rd Oct., 1980, on account of the fact that the partners Krishna Prakash and Ram Kishore were not willing to sign the revised declaration and that it was only after great persuasion by relatives that they signed the declaration. It also noticed that those partners had retired from the firm w.e.f. 21st Sept., 1979, and that the notice dt. 25th Jan., 1980, also did not specify any time during which the defects were to be removed by the assessee. Accordingly, it held that the AAC was quite justified in taking the view that the assessee was prevented by a sufficient cause from filing the revised declaration in time. In the result, the appeal filed by the Department was dismissed.
(3.) We have heard Sri A.N. Mahajan, the learned standing counsel for the Revenue. Nobody has put in appearance on behalf of the respondent- assessee.;