High Court Of Allahabad
CIT vs. Brahm Swarup Tandon & Co.
Section 253
Asst. Year 1976-77
R.K. Agrawal & K.N. Ojha, JJ.
IT Ref. No. 52 of 1985
5th August, 2004
Counsel Appeared :
A.N. Mahajan, for the Applicant : Murlidhar, for the Respondent
ORDER
BY THE COURT :
The Tribunal, Delhi, has referred the following question of law for opinion to this Court under s. 256 (1) of the IT Act, 1961, hereinafter referred to as the Act :
“Whether the learned Tribunal was justified in law in entertaining the appeal against refusal of registration when no separate order under s. 185 was passed by the ITO ?”
2. The reference relates to the asst. yr. 1976-77. The ITO while making the assessment under s. 143(3) took the status of the respondent-assessee of AOP instead of a registered firm claimed by the respondent-assessee. The assessee preferred one single appeal against the assessment order and challenged the findings regarding status also.
3. The appeal was entertained by the CIT(A) who held that the firm should be treated as an AOP entitled to the registration. The appeal filed by the CIT before the Tribunal failed.
4. We have heard Shri A.N. Mahajan, learned counsel for the Revenue and Sri Murlidhar who has put in appearance for the assessee.
5. Under s. 246(1)(a) of the Act, an appeal lies against the order of assessment as also on the question where the status under which the assessee has been objected to. The ITO in the assessment order itself have changed the status of the respondents from that of a registered firm to an AOP. Thus, the single appeal was maintainable.
6. In the case of CIT vs. Rupa Traders (1979) 118 ITR 412 (Cal), the Calcutta High Court has held that :
“Under s. 246 of the IT Act, 1961 r/w r. 45 of the IT Rules, 1962, and Form No. 35 prescribed under the Rules, where an assessee challenges before the AAC both a best judgment assessment under s. 143 and an order refusing registration under s. 185 relating to more than one assessment year, a single consolidated appeal against the order of assessment as well as the orders refusing registration or renewal of registration is valid…..”
7. Similar view has been taken by the Bombay High Court in the case of CIT vs. Hansa Agencies (1980) 121 ITR 147 (Bom) and the Gujarat High Court in the case of Patel & Co. vs. CIT (1986) 51 CTR (Guj) 52 : (1986) 161 ITR 568 (Guj) and by the Rajasthan High Court in the case of Ansari Jewellers vs. CIT (1987) 64 CTR (Raj) 286 : (1987) 167 ITR 380 (Raj).
8. We are in respectful agreement with the views taken in the aforesaid cases and hold that a single appeal was maintainable against the order of assessment and refusal to grant registration.
9. Respectfully following the aforesaid decisions we answer the question of law referred to us in the negative, i.e., in favour of assessee and against the Revenue. However, the parties shall bear their own costs.
[Citation : 283 ITR 320]
