2018 (6) TMI 1392

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....on 184 of the Income Tax Act, 1961, though there is no failure on the part of the appellant. 3. That the Learned CIT(A) and Assessing Officer have failed to appreciate that appellant is a firm carrying on the profession for the last several years and it is evidenced by Deed of Partnership, copy of which was filed during the course of assessment & appellate proceedings and original deed was produced before the Assessing Officer and CIT (A) for verification. 4. That the learned CIT(A) and Assessing Officer have erred both in law and on facts in adopting the 'status' of the appellant, while framing the assessment as that of A.O.P. instead of 'Firm'. 5. That having regard to the fact and circumstances of the case, the Ld.CIT(A) has erred in confirming the addition of Rs. 175492/- made by learned Assessing Officer on account of vehicle maintenance expenses 6. That the orders passed by learned CIT(A) and Assessing Officer are totally against the principles of natural justice. 7. That the appellant pray for leave to add, alter, amend or delete above ground of appeal either before or at the time of hearing. 2. Briefly stated facts of the case....

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.... of any account therefore the appellant was required to produce the certified copy during assessment when required by the Assessing Officer. * The question of dispute is whether a. Certified copy was produced during assessment or not b. Whether the original partnership deed was produced for verification of the Assessing Officer or not * The claim of the Assessing Officer in the assessment order is that the copy submitted by the assessee firm was without any certification and the deed was not witnessed by any person. * Original partnership deed was not produced during assessment * The appellant has relied upon his letter No.632 dated 06.03.2014 as evidence of his claim that the original partnership deed was produced and letter dated 30th January, 2014 and 3rd March, 2014 stating that the certified true copy of partnership deed was filed. 5.8 To verify the true fact the assessment records was perused. 1) The copy of deed produced at the time of assessment was enclosed as annexure to letter dated 30.01.2014 and 03.03.2014. It is apparent from the perusal of the copy filed by the appellant firm that the * ....

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....n to the partners, which has been disallowed in terms of section 185 of the Act, which says that "if a firm does not comply with the provisions of section 184 of the Act for any assessment year, then no deduction by way of payment of interest, salary, bonus, commission or remuneration made by the firm to any partner of such firm shall be allowed". The section 184 of the Act requires that a certified copy of the instrument of the partnership should be accompanied along with the return of income of the firm, whenever assessment of the firm is sought for first time. How the certified copy shall be filed has been explained in Explanation below to subsection (2), which is reproduced as under: "Assessment as a firm. 184. (1) .......................................... (2) ................................................ Explanation.-For the purposes of this sub-section, the copy of the instrument of partnership shall be certified in writing by all the partners (not being minors) or, where the return is made after the dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the leg....

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.... however, same was ignored by the Ld. CIT(A) on the ground that no application under Rule 46A of the Income Tax Rules, 1962 was filed. The assessee has produced the original partnership deed before us. Thus, there is no doubt as the original partnership deed exists, but the assessee is required to make compliance of section 184(2) of the Act by way of filing a copy of the partnership deed duly certified in writing by all the partners. When the original copy is available with the assessee, we do not find any difficulty in filing copy of the said partnership deed duly certified by all the partners, as long as the original deed is genuine. In the facts and circumstances, we feel it appropriate to restore this issue to the file of the Assessing Officer, with a direction to the assessee to comply with the provisions of section 184(2) of the Act and submit a copy of the relevant partnership deed duly certified by the then partners in writing before the Assessing Officer, who then may verify the genuineness of the same and decide the issue in dispute in accordance with law. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The ground of the....