JUDGMENT Balakrishna Eradi, J. 1. The Judgment of the Court was delivered by Balakrishna Eradi, C. J. - The Income Tax Appellate Tribunal, Cochin Bench (herein after called the Tribunal) has referred to this Court under S.256(1) of the Income Tax Act, 1961 - for short, the Act - the following question of law as arising out of the order dated 12-12-1977 passed by it in ITA No. 583/Coch/76-77: "Whether on the facts and in the circumstances of the case an appeal would lie before the Appellate Assistant Commissioner and a further appeal before the Appellate Tribunal as against the refusal by the Income Tax Officer to entertain the application for registration?" 2. The assessee is a firm and the assessment year with which we are concerned is 1973-74. Registration had been given to the firm for the accounting year which ended on 31-12-1969 (assessment year 1970-71) and continuance of that registration was allowed till the assessment year 1972-73. On 4-11-1972 a deed of dissolution was executed by the four partners of the firm, the accounts of the firm were closed and a profit and loss account and balance sheet were drawn up. On 2-12-1972 three of the erstwhile partners constituted themselves into another firm by a deed executed on that day and. the said firm took over the business of the dissolved firm with effect from 5-11-'72. The result was that though the business continued, there was a change in the constitution of the firm during the accounting period relevant for the assessment year 1973-74. 3. On 23-7-1973 a return was filed showing the profits of the dissolved firm for the period from 1-1-1972 to 4-11-1972 for the purposes of its assessment for the year 1973-74. An application in Form No. 12 for continuation of the benefit of registration had been filed on 14-6-1973. 4. The assessment proceedings of the firm for the year 1973-74 were taken up by the Income Tax Officer only some time in November - December, 1975. The Income Tax Officer was of the opinion that in view of the change in the constitution of the firm that had come about during the course of the relevant accounting period, the assessee ought to have filed an application for registration in Form No. 11A and this was communicated to the assessee by a letter dated 30-12-1975. The Income Tax Officer was of the opinion that in view of the change in the constitution of the firm that had come about during the course of the relevant accounting period, the assessee ought to have filed an application for registration in Form No. 11A and this was communicated to the assessee by a letter dated 30-12-1975. Thereupon the assessee filed an application for registration in Form No. 11A on 26-1-1976 and requested for condonation of the delay. The Income Tax Officer rejected that application as per an order dated 19th March, 1976 (Annexure 'C'), the ground of rejection stated therein being that there had been inordinate delay on the part of the assessee in filing the said application for registration in Form No. 11A. The heading given to the order shows that it was one passed under S.185(1)(b) read with S.184(4) of the Act and the order concludes with the operative words "In the result, the application for registration is dismissed", thereby clearly indicating that it was an order passed in exercise of the powers conferred on the Income tax Officer by S.185 of the Act. The assessee preferred an appeal before the Appellate Assistant Commissioner of Income Tax complaining against the rejection of his prayer for the grant of registration. That appeal having been dismissed by the Appellate Assistant Commissioner, the assessee carried the matter in second appeal before the Tribunal. In that appeal a preliminary objection was taken on behalf of the department that the second appeal did not lie, since the appeal filed by the assessee before the Appellate Assistant Commissioner was incompetent m as much as the Act does not provide for any appeal being filed against an order passed by the Income Tax Officer under sub-s.(4) of S.184 of the Act refusing to accept a declaration filed under the proviso to the said sub-section, beyond the time limit prescribed therein. The Tribunal overruled this objection following an earlier decision rendered by it in ITA No. 162 (Coch)/76-77, wherein it had been held that an order passed by the Income Tax Officer refusing to condone the delay in furnishing a declaration under S.184(4) was appealable, it being in substance an order refusing registration. The correctness of the said view taken by the Tribunal forms subject matter of the present reference made to this Court. 5. The correctness of the said view taken by the Tribunal forms subject matter of the present reference made to this Court. 5. The correctness of the view taken by the Tribunal in the order passed by it in ITA No. 162 (Coch) / 1976-77 came up for examination by this Court in ITR No. 129 of 1978, wherein the following question of law had been referred by the Tribunal to this Court at the instance of the Commissioner of Income Tax as arising out of the aforesaid order of the Tribunal in ITR No. 162(Coch) / 1976-77: "Whether on the facts and circumstances of the case the appeal preferred by the assessee to the Appellate Assistant Commissioner against the order passed by the Income Tax Officer declining the condone the delay in the filing of the application for registration and consequently refusing registration for the assessment year 1974-75 was competent?" 6. In that case, as in the present one, the order passed by the Income Tax Officer was specifically expressed as one made in exercise of the power conferred by S.185(1)(b) of the Act. This Court in its judgment dated 16th June, 1980 pointed out that there is a well established principle that where a court or Tribunal acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on facts that order should not have been passed under that provision and that the right to appeal depends on what the court or Tribunal actually does, and not what it should have been done. Accordingly, it was held that in as much as the Income Tax Officer had passed the order, the appealability of which was in question in that case, specifically in the exercise of his powers under S.185(1)(b), the appeal filed by the assessee before the Appellate Assistant Commissioner was maintainable under S.246(j) of the Act. 7. The present case is fully governed by the aforesaid dictum. 7. The present case is fully governed by the aforesaid dictum. The facts of this case are even stronger than those which were present before this Court in ITR No. 129 of 1978, because in the present case the order in question was passed not on the application filed by the assessee for acceptance of the declaration referred to in the proviso to sub-s.(4) of S.184 beyond the time limit prescribed therein, but on a separate application filed by the assessee in Form No. 11A for the grant of fresh registration in compliance with the instruction issued to the assessee by the Income Tax Officer as per his letter dated. 30-12-1975. An order rejecting an application filed in Form No. 11A for the grant of fresh registration can be passed by the Income Tax Officer only under S.185 of the Act and such an order is clearly appealable Under S.246(j). Hence this is a case where the order is in purport as well as in fact one passed by the Income Tax Officer Only under S.185(1)(b) of the Act. The conclusion recorded by the Tribunal that the appeal filed by the assessee against the said order before the Appellate Assistant Commissioner was maintainable in law, is perfectly correct. We accordingly answer the question referred in the affirmative i.e. in favour of the assessee and against the department. The parties will bear their respective costs. A copy of this judgment, under the seal of this Court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.