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Reference Case No. 11 of 1968, decided on 25th April 1968.

r. 6(2) read with Income‑tax Act (XI of 1922), S. 22 (1‑A)‑Renewal of registration of partnership Application not filed by due date i.e. 15‑7‑1962 but on 3‑10‑1962 Income‑tax Officer not extending time in exercise of power under proviso to r. 6(2)‑Application held, time barred.

Afzalul Huque for Applicant.

A. H. Mirza with M. Hasan for Respondent.

Date of hearing : 25th April 1968.

‑The Income‑tax Appellate Tribunal, Dacca has referred the following question under subsection (1) of section 66 of the Income‑tax Act, hereinafter called "The Act" for our opinion:

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the applica tion for renewal of registration was filed within time."

This reference is fully covered by our decision in Reference Case No. 5 of 1967, judgment of which was delivered on 5‑4‑68.

In the instant case also, the assessee firm filed a return of total income on 4‑4‑63 for the accounting period commencing on 1‑1‑61 and ending on 31‑12‑61, but bled an application for renewal of registration on 3‑10‑62. Subsection (1‑A) of sec tion 22 of the Act provides that a return is to be filed by an assessee whose accounting period ends on thirty‑first day of December by the fifteenth day of July next following. Sub‑rule (2) of Rule 6of the Income‑tax Rules promulgated by Notification No. 335(K)62, dated 27th March. 1962, provides that application for renewal of registration shall also be made on 15th July, next following if not extended by the Income‑tax Officer exercising his power under the proviso to, sub‑rule (2) of Rule 6. The Income‑tax Officer, it is stated, in the letter of reference refused to condone the delay when prayer for the same was made to him. The decision of the Income‑tax Officer was affirmed by the Appellate Assistant Commissioner. The Tribunal however, directed that the renewal of registration should be granted to the assessee firm.

The question referred to us is as to whether the application for renewal of Registration was filed within time: In the facts noticed above, our answer must be in the negative. It was open to the Tribunal to exercise power laid down in the proviso to sub‑rule (2) of Rules and extend time acting as an appellate authority. But the question referred to is not as to whether such an extension should have been granted or could in law be granted. The question is whether the application for renewal of registration was within time and we have already held that the application was not filed within the time prescribed by law.

Subsection (1‑A) of section 22 reads as follows :‑

"(1‑A). The return referred to in subsection (1) shall be filed‑

(a) where the previous year of an assessee ends at any time between the first day of July and the thirty‑first day of Decem ber both dates inclusive, by the fifteenth day of July next following."

This provision relates to filing of the return in consequence whereof the return was to be filed by this assessee in this case by 15‑7‑62.

We would now refer to Rule 6(1)(a) of the Rules referred to above. It reads as follows:

"Any firm to whom a certificate of registration has been granted under Rule 5 may apply for the renewal of the registra tion for a subsequent year."

After having provided in the said rule for filing an application for renewal of registration it is laid down in sub‑rule (2) of Rule 6 as to when it is to be presented. It reads as follows:

"The application referred to in sub‑rule (1) shall be made after the profits of the firm have been divided among or credited to the accounts of the partners and in the case of loss, after the loss has been debited to the accounts of the partners but not later than the date laid down in clause (a) or clause (b), as the case may be, of subsection (1‑A) of section 22 for filing the return of total income and total world income :"

It is true no fixed date is mentioned in sub‑rule (2) just quoted, as pointed out by Mr. Mirza but it is also clear that a date is men tioned by reference to subsection (1‑A) of section 22 which makes provision for filing a return of total income and in this case that date is 15th July 1962. Sub‑rule (2) quoted above, therefore, makes it clear that the application for renewal of registration is also to be filed by the 15th July 1962. This has not been done. The application for renewal has been filed on 3rd October 1, 962. Therefore, we are of opinion that the application has not been filed within the time prescribed by law.

Mr. Mirza argues that since the return was allowed to be filed after the 15th July 1962, that is on 4‑4‑63, time for filing the application for renewal of registration was also impliedly extended. This‑argument is not acceptable to us for there is a proviso to sub‑rule (2) of the said Rules itself which provides for extending the time for filing the application for renewal of registration. That proviso is as follows:

"Provided that the Income‑tax Officer may entertain an application made after the expiry of the date specified above if he is satisfied that the firm was prevented by sufficient cause from making the application within the prescribed time limit."

The Income‑tax Officer is authorised to accept an application for renewal even after the due date if he is satisfied that firm was prevented by sufficient cause from making the application within the time laid down by law. This shows that a conscious act was necessary. The Income‑tax Officer is to apply his mind and be satisfied that the firm was prevented by sufficient cause from making the application in time before entertaining it. It cannot therefore be contended that simply because the time for filing the return of total income was extended, the Income‑tax Officer exercised his power under the proviso to sub‑rule (2) of the Rules and impliedly extended time for filing the application for renewal of registration.

For the reasons stated above, the question referred to us is answered in the negative.

We leave the parties to bear their own costs.

.‑I agree.

S. Q. Reference answered in the negative.

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