- (1.) THIS is a reference under Section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as the Act), and the following questions of law have been referred to this court : " (1) Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the order passed by the Income-tax Officer was one under Section 185 and not under Section 184(4) ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that an appeal could be filed against an order under Section 184(4) of the Income-tax Act ?"
(2.) THE assessee-firm carried on whole sale cloth business. THE firm came into existence by a deed of partnership dated October 24, 1965, consisting of four partners. THE firm was assessed as a registered firm. However, it appears that some changes had taken place in the firm on account of the death of one of the partners and, therefore, complying with the provisions of Sub-section (4) of Section 184 of the Act the firm was obliged to furnish a certified copy of the revised partnership deed along with the return of income for the assessment year relevant to such previous year, but the same had not been complied with well within the period of limitation stipulated in the Act and the Rules framed thereunder. However, the same was filed subsequently along with an application for condonation of delay. Since the application was not made in accordance with the provisions of Sub-section (4) of Section 184 of the Act and the Rules framed thereunder within the period of limitation, the application was rejected against which an appeal was filed. THE first appellate authority held that a bare perusal of Sub-section (4) of Section 184 of the Act contemplates that no appeal is maintainable under Section 246 of the Act. However, against this finding, the assessee preferred an appeal before the Tribunal and the Tribunal reached the conclusion that an appeal lies against this order even if it is passed under Sub-section (4) of Section 184 of the Act which has resulted in refusing the registration, i.e., having the same effect contemplated under Section 185 of the Act against which the Revenue has come up before this court. A bare reading of Section 185 of the Act envisages that in pursuance of an order passed under Section 185 of the Act all the provisions of the Act shall apply accordingly, meaning thereby the provisions of appeal, revision, etc., are applicable to the orders arising out of the provisions of Section 185 of the Act. But the language used in. Sub-section (4) of Section 184 of the Act admittedly does not envisage appeal or revision. It appears that on this analogy, the Appellate Assistant Commissioner denied the right of appeal to the assessee holding that the orders arising out of the provisions of Section 184 do not envisage appeal or revision. Shri R. K. Agarwal, learned counsel appearing for the Revenue, is fair enough to concede contending that even if an order passed under subsection (4) of Section 184 of the Act results in refusing the registration within the meaning of Section 185 of the Act, the same is also appealable. This is what has been held by the apex court in CIT v. Ashoka Engineering Co. [1992] 194 ITR 645.
(3.) THUS, the matter in issue having been covered by the apex court decision referred to above, the questions are answered in the affirmative in favour of the assessee. The reference is answered accordingly.;