S. R. Chauhan, J.M.
1. As both the above appeals are inter-related and involve common point, so we are disposing them of by this common order for the sake of convenience.
2. ITA No. 65(Jd) of 1997 is an appeal by the assessee and ITA No. 1607(Jp) of 1994 is an appeal by Revenue, both being for asst. yr. 1993-94 and are directed against the separate order of CIT(A), Jodhpur, dt. 23rd October, 1997, and 16th May, 1994, respectively.
3. The facts, in brief, are that the AO processed the assessee’s return under s. 143(1)(a) and issued intimation thereunder to the assessee wherein the AO treated the status of assessee as AOP and not as registered firm. The assessee then preferred application under s. 154, dt. 28th December, 1993, seeking rectification of the intimation by way of treating the assessee as a registered firm. The AO vide his order under s. 154, dt. 4th January, 1994, rejected the assessee’s application thereupon the assessee preferred appeal before CIT(A) who vide his order dt. 16th May, 1994, set aside the AO’s order dt. 4th January, 1994, passed under s. 154 and restored the matter to AO with certain direction with respect to defect under s. 139(9) and rectification of the defect.
4. The Revenue has preferred its appeal being ITA No. 1607(Jp) of 1994 against CIT(A)’s setting aside order dt. 16th May, 1994.
5. The AO, however, after the CIT(A)’s set aside order dt. 16th May, 1994, reframed the assessment order dt. 12th March, 1997, under s. 143(3) set aside wherein the AO again treated the status of the assessee as AOP. Aggrieved thereby the assessee preferred appeal before the CIT(A) who vide his order dt. 23rd October, 1997, confirmed the AO’s order and thereby dismissed the assessee’s appeal. Hence the assessee is in appeal before the Tribunal.
6. We have heard the arguments of both the sides and also perused the records.
7. First we take ITA No. 1607/Jp/94 being Revenue’s appeal against CIT(A)’s order, dt. 16th May, 1994, directing the AO to allow the assessee an opportunity to rectify the defect regarding non-furnishing of duly certified partnership deed. The Revenue has raised two grounds of appeal before us but both the grounds constitute single issue disputing the CIT(A)’s order dt. 16th May, 1994, with regard to the directions issued to AO. The learned Departmental Representative of Revenue has contended that the status of assessee was taken by AO as AOP instead of registered firm (RF) and that the assessee’s petition under s. 154, dt. 28th December, 1993, having been rejected the assessee filed appeal before CIT(A) who vide his impugned order dt. 16th May, 1994, directed the AO as mentioned above. He has contended that the various kinds of defects with respect, to which notice for rectification of the defect can be issued under s. 139(9) are enumerated in Explanation under sub-s. (9) of s. 139 and that the defect of the kind involved in this appeal is not mentioned in cls. (a) to (f) of the said Explanation. He has contended that the CIT(A)’s direction to AO to the effect that AO should allow an opportunity to the assessee for filing duly certified partnership deed and thus to remove the defect is not in accordance with law. He has contended that the ITO’s order should be restored. As against this the learned authorised representative of assessee has contended that the learned CIT(A) had issued direction to AO and AO was bound to follow those directions. He has cited Bhopal Sugar Industries Ltd. vs. ITO (1960) 40 ITR 618 (SC) in this regard. He has also contended that before changing the status of assessee from RF to AOP the AO ought to have afforded an opportunity to the assessee for rectification of the defect regarding non-furnishing of the copy of the partnership deed certified to be so by signatures of all the partners of the firm. He has also contended that the AO could not change the status of assessee-firm to AOP while processing the return under s. 143(1)(a) and he has cited ITO vs. D.M. Enterprises (1998) 61 TTJ (Del) 423 in his support. He has contended that it is not necessary that a duly certified copy of the partnership deed should be filed along with the return and the same can as well be filed afterwards. He has contended that similarly audit report is also sometimes not filed along with the return but subsequently. He has contended that a duly certified copy of the partnership deed can also be furnished under s. 154. He has cited CIT vs. Rai Bahadur Bissesswarlal Motilal Malwasie Trust (1992) 195 ITR 825 (Cal). He has contended that so far as the matter of status of assessee is concerned it could be decided under s. 143(3) and not in summary assessment under s. 143(1)(a). He has contended that s. 184 deals with assessment and not intimation. He has referred to s. 246(1)(a) and contended that upto 31st May, 1994, there was no appeal against intimation issued under s. 143(1)(a). He has contended that IT Act has made distinction between assessment and intimation for many purposes. He has contended that the AO could invoke s. 184 only while making regular assessment under s. 143(3) and not while making summary assessment. In rejoinder the learned Departmental Representative of Revenue has contended that under s. 184(1) r/w Explanation under sub-s. (2) of s. 184, provision regarding furnishing copy of the partnership deed certified by all the partners of the firm to be a certified copy is mandatory as the word “shall” has been used in the provision. He has contended that under sub-s. (5) of s. 184 it is provided that if the aforesaid provision regarding furnishing of the duly certified copy of the partnership deed is not complied with, then the firm shall be assessed as AOP. He has also contended that the decision of the Delhi Bench (1998) 61 TTJ (Del) 423 (supra) is distinguishable on facts inasmuch as the duly certified copy of the partnership deed was filed along with the return and so the defect therein was not the same as involved in this appeal and that the Delhi Bench had no occasion to decide as to whether the failure to furnish duly certified copy of the partnership deed is a defect within the purport of s. 139(9) or not. He has contended that in the Calcutta decision the non-furnishing of audit report was involved and the said defect is very much there within those enumerated in s. 139(9) and so the said decision is not applicable in the instant case. He has contended that for all purposes, intimation is an assessment from asst. yr. 1989-90.
8. We have considered the rival contentions as also the relevant material on record and have also gone through the cited decisions. From the perusal of record we find that the learned CIT(A) has, in his impugned order, dt. 16th May, 1994, found that assessee’s default of not furnishing the copy of the partnership deed duly certified as a copy by signatures of all the partners of the firm was a technical error. He has also observed that while making order under s. 143(1)(a) the AO is empowered to point out the defect, if any, in the IT return under s. 139(9) and can allow the assessee to rectify the defect. He has also observed that the AO is not justified in not allowing the claim of RF to the appellant-assessee without complying with s. 139(9) to allow appellant opportunity to rectify the defect. In our opinion, non-furnishing of a copy of the partnership deed duly certified to be a copy by the signatures of all the partners put on the copy is not enumerated in any of the clauses of Explanation below s. 139(9) no doubt but such a defect is certainly a technical defect inasmuch as the original partnership deed already remains filed on record before the AO initially when the registration to the firm is granted for the first time and the assessee’s default was in not furnishing a copy thereof duly certified as required under s. 184, although the assessee did furnish a copy of the partnership deed but certified by only the authorised representative of assessee and not certified by the partners. Although the purport of rectification as postulated under s. 154 does not embrace, within its fold, the furnishing of fresh evidence, in general, but we are of the considered opinion that in certain circumstances furnishing of evidence may be permitted under s. 154 when the same is required for rectifying a technical defect/error/mistake which is apparent from record; and the said evidence is essentially on a technical point involved in the defect/error/mistake apparent from record and is not on merits of the case otherwise. We may, however, make it clear here that we do not mean to lay down any general proposition that any fresh/additional evidence can be furnished under s. 154 by way of rectification of mistake, as the same does not, as such, fall within the ambit of s. 154 and the same may fall within the ambit of an appeal, but sometimes when a mistaken or anomalous situation has arisen which is apparent from record, and a rectification of such mistake/anomaly is needed to render effective and substantive justice then for such limited purpose the evidence which merely pertains to technical error/anomaly may, in such circumstances, be permitted to be furnished so as to facilitate the rectification of the said mistake/error/anomaly. For this view of ours, we also get support from CBDT’s Circular No. 669, dt. 25th October, 1993, [(1993) 204 ITR (St) 105] which provides that where the sums referred to in the first proviso under s. 43B had in fact been paid on or before the due dates mentioned therein, but the evidence therefor had been omitted to be furnished along with the return the AO can entertain applications under s. 154 for rectification of the intimation and decide the same on merits. Obviously this circular impliedly permits the furnishing of evidence supportive of the payment which the assessee had failed to furnish earlier although the payment had in fact been made before the required due date, although it does not specifically so state but it does essentially so imply or else the circular will have no meaning and will serve no purpose.
9. Besides, we may also note that the enumeration of various defects in Explanation below s. 139(9), IT Act, which is not exhaustive but only illustrative as has been held by Hon’ble Calcutta High Court in (1992) 195 ITR 825 (Cal) (supra). The AO may not have been bound to point out the said defect to the assessee but nevertheless the AO did inhere, within himself, the jurisdiction to point out such defect to the assessee and to allow him an opportunity to rectify the defect. The AO, however, having not considered it necessary to have the said defect rectified in the manner just discussed, the first appellate authority, in turn, also inhered the jurisdiction to have the said defect rectified. Even apart, the jurisdiction of first appellate authority cannot be said to have been restrictively circumscribed in an appeal against an order under s. 154, IT Act, when the same is considered with reference to cl. (c) of s. 251(1) which is as under :
“Sec. 251(1) in disposing of an appeal, the CIT(A) shall have the following powers –
(c) in any other case, he may pass such orders in the appeal as he thinks fit.”
10. It may also be observed, as it may not be irrelevant here, that the change of status from firm to AOP is not covered within the ambit of permissible prima facie adjustments enumerated in proviso to s. 143(1)(a) as has been propounded judicially by Tribunal Delhi (supra).
11. In view of our above discussion, we find no merit in the contentions raised on behalf of the Revenue and we find the impugned order of learned CIT(A) dt. 16th May, 1994, to be quite in accordance with law and justified. We need, therefore, make no interference therein.
12. Now we take up assessee’s appeal being appeal No. 65 (Jd)/1997. The contention of learned authorised representative of assessee has been that the AO was found by the directions of learned CIT(A) given in his appellate order dt. 16th May, 1994, and accordingly the AO was bound to rectify the defect. He has contended that a copy of the partnership deed certified as a copy and signed by all partners of the assessee-firm was very much there on record as the same had already been filed by assessee along with its rectification application and so the same was available on record. He has contended that in view of the above fact-situation, the AO in his reassessment, dt. 12th March, 1997, made under s. 143(3) set aside was bound to treat the defect of non-furnishing of duly certified copy of the partnership deed as having been rectified and in turn to treat the status of assessee as RF. As such, considering all the facts and circumstances of the case, as also the legal position emanating from the cited/referred judicial pronouncements available on record together with our conclusion drawn above on the point of rectification in ITA No. 1607/Jp/1994, we are of the view that the impugned order of learned CIT(A) in confirming the AO’s finding treating the assessee as AOP is not justified and not tenable in the eye of law, and in fact the orders of the authorities below have become infructuous in view of our decision given above in ITA No. 1607/Jp/1994. We order accordingly.
13. In the result, the Revenue’s appeal being ITA No. 1607/Jp/94 is dismissed and the assessee’s appeal being ITA No. 65/Jd/97 is disposed of as indicated above.