- (1.) HEARD learned counsel for the parties.
(2.) IN this tax appeal, the following substantial question of law is involved: (i) Whether the doctrine of Merger applies in the facts and circumstances of the case, particularly in view of the fact that the status as of "Registered Firm  was denied to the appellant for the previous year, followed in the current assessment year, but allowed in the previous assessment year after remand. (ii) Whether in the facts and circumstances of the case, the status as of "Registered Firm  as being allowed for the preceding assessment year and for subsequent years, the same have to be allowed for the year under appeal (Assessment year 198889). The facts which are in dispute are that the appellant's firm was registered firm from the assessment year 198485. However, due to reconstitution of the firm during financial year 198687 corresponding to assessment year 198788 the appellant applied for re -registration of the firm by submitting Form No. 11A under the Income Tax Act, 1961. The A.O. refused the registration of the firm and against that order, the assessee preferred appeal before the C.I.T. (A), who dismissed the appeal so far the registration part is concerned. On further appeal, the I.T.A.T. vide order dated 04.08.1995, remanded the matter for registration to A.O. for the assessment year 198788. Therefore, the petitioner's firm stand registered from and for the assessment year 198788 and has been assessed as such. During this period, the appellant petitioner was already assessed for the subsequent assessment year 198889 treating the petitioner's firm to be a not registered firm. The petitioner since pursuing its appeal before the I.T.A.T. as well as after remand, before the A.O. for getting registration of the firm from the year 198788, therefore did not choose to prefer appeal against the assessment order for the year 198889, and after dismissal of his appeal before the C.I.T. (A) (for assessment year 198889). It would be worthwhile to mention here that the C.I.T. (A) dismissed appeal of the appellant assessee for the assessment year 198889, on the ground of delay holding it to be barred by time as the appeal was preferred by the assessee after delay of 1253 days. Therefore, the C.I.T. (A) did not decide the appeal on merits. However, petitioner submitted an application under Sections 154,185A and Section 251 of the Income Tax Act, 1961, which stand rejected throughout up to tribunal.
(3.) THE petitioner since got the order of registration of his firm vide order dated 26.02.1996 pertaining to year 198788 as was passed by the A.O. after remand by the I.T.A.T. for the purpose of registration of the firm, therefore, the petitioner's contention before the A.O. was that since as registration has already been ordered for the year 198788, therefore, as from that year, the appellant's firm's registration continues from the year 198788, till its constitution is changed. Therefore, since the fact of non registration of the firm became nonexistent with effect from the date submitting the Form 11A of the Income Tax Act, 1961 for assessment year 198788, the order passed by the Assessing Officer for the assessment year 198889 should have been rectified. The A.O. refused to rectify, the C.I.T. (A) and tribunal also dismissed the appeals. Therefore, this appeal has been preferred by the assessee.;