- (1.) THE petitioner-firm, which, though is a registered firm, has been assessed as an unregistered firm for the assessment year 1971-72, by the Income-tax Officer (ITO) for the reason that it failed to file the prescribed Form No. 12 within the time prescribed under Section 139 of the I. T. Act (for short "the Act" ). The explanation of the firm for this delayed filing of the declaration on account of its lack of knowledge about the amendment of prov. (ii) to Section 184 (7) of the Act with effect from April 1, 1971, was not accepted as bona fide. On an appeal against this order of the ITO before the Appellate Assistant Commissioner (AAC), the conclusion recorded by ITO was affirmed. However, on further appeal, before the Income-tax Appellate Tribunal, the Tribunal disagreed with the abovenoted conclusions of the lower authorities and concluded the matter thus in favour of the assessee : "so far as the question of existence of sufficient cause for the delay under consideration is concerned, we do not agree with the Appellate Assistant Commissioner that the fact of declaration having been signed on 3-9-1971, was determinative of the assessee's knowledge of the changed law requiring the filing of the declaration by 30-9-1971, even if the return of income was filed later. Thus, there is no material on record to warrant rejection of the assessee's plea as to its bona fide belief that the declaration in question could be filed along with the return of income as under the law effective until 13-3-1971. The assessee succeeds. "
(2.) BUT still, the appeal of the petitioner was dismissed by the Tribunal on the ground that the appeal before the AAC itself was not competent and, therefore, the appeal before the Tribunal was not competent. It is this later part of the order of the Tribunal which is now impugned in this petition.
(3.) IT is not a matter of dispute now that in view of the Division Bench judgment of this court in CIT v. Mothooram Premchand [1980] 121 ITR 59, it has to be held that the appeal before the AAC against the impugned order of the ITO was competent and to that extent, the later part of the impugned order of the Tribunal has to be set aside. Learned counsel for the respondents, however, raises two objections, firstly, the petition deserves to be dismissed as the petitioner failed to exhaust all the remedies available under the Act and, secondly, the abovenoted judgment in Premchand's case [1980] |2i ITR 59 (P and H) is not correct.;