A. Sagayanathan and Others Vs. Divisional Personal Officer, S.B.C. Division, Southern Railway, Bangalore

.....of law. the appellate assistant commissioner and the tribunal had not considered the question whether the application for registration reflected the true position as regards the real partners in the assessee-firm. the reasoning of the appellate assistant commissioner was pertinent only to a case of sub-partnership, and the tribunal merely referred to certain decisions and dismissed the department's appeal. since the finding of the appellate assistant commissioner and also of the tribunal was arrived at by ignoring the relevant facts found by the income-tax officer, the finding was vitiated by an error of law. the high court has also committed an obvious error as to when the ferozepore firm was constituted and that error has led to the further error that the ferozepore firm was sub- partnership in relation to the assessee-firm. moreover the decisions in commissioner of income-tax v. sivakasi match exporting co. [1954] 1 s.c.r. 18 and commissioner of income- tax v. bagyalakshmi & co. [1965] 2 s.c.r. 22 do not apply to the facts of this case, because, the observations in those cases are based on the fact that the person admitted as a partner in the firm seeking registration was admitted as an individual, whereas in the present case one of the partners of the firm seeking registration was a partner in his re- presentative capacity. thus the question in the instant case was a substantial question of law which has not been settled. therefore, the high court should have directed the tribunal to refer the question. [188 h; 190 h. 189 h; 188 a- b; 192 b-d] - this was precisely the dispute which the tribunal ought to have considered, but unfortunately it did not do so by reason of the delay.1. special leave granted.2. the complaint of the appellants is that they are still not promoted to the higher post although their juniors had been promoted as early as may, 1983. promotion to the higher post is governed by the rule of seniority. the appellants had not been considered for promotion.3. the tribunal found that the appellants were too late in agitating their grievance. it was solely on the basis of delay that the tribunal did not enter on the merits of the appellants' complaint.4. it is not disputed that the juniors of the appellants had been promoted. however, respondent's counsel submits that the juniors were promoted for justifiable reasons. whatever may be the reason which prompted the respondent to promote the juniors in preference to the appellants, the fact is that the appellants had a genuine grievance in so far as they had been superseded by their juniors. this was precisely the dispute which the tribunal ought to have considered, but unfortunately it did not do so by reason of the delay.5. having heard counsel on both sides and perused the records, we are of the view that, despite the delay, this is a matter which requires investigation.6. accordingly, we direct the tribunal to rehear the parties after giving them an opportunity to implead the necessary parties, file fresh affidavits and adduce any other evidence which they may wish to adduce. the tribunal shall dispose of the matter on the merits as urgently as possible. the appeals are accordingly allowed. no costs.