TMI Blog1960 (11) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to ₹ 1,30,000, which deserved to be considered for inclusion in the assessee's total income. He accordingly issued a notice under section 34 calling upon the assessee to file a return of income. The assessee filed the return and in response to the notice issued under section 23(2) and 22(4) offered an explanation in respect of the cash credits noted by the Income-tax Officer. The assessee challenged the validity of the notice issued under section 34 of the Income-tax Act. The Income-tax Officer overruled the legal objection and held that the sum of ₹ 1,30,000 was the assessee's income from undisclosed sources and assessment was, therefore, made under section 34 read with section 23(3) of the Income-tax Act. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 34 after it had been assessed by the Income-tax Officer in pursuance of the appellate order passed by the Appellate Assistant Commissioner remanding the case to him. After having heard learned counsel for the parties we are of the opinion that the Income-tax Appellate Tribunal misdirected itself in law in taking the view that a subsisting demand was essential for the maintainability of an appeal before them. Section 33 of the Income- tax Act which provides for an appeal by an assessee reads as follows: (1) Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case the appeal to the Tribunal could be said to be infructuous. He says the use of the word infructuous was rather unhappy but he does not suggest what other word could be substituted in the Tribunal's order to express the decision more correctly. The Tribunal has referred to the fact that there was no subsisting demand against the assessee and has said later that the appeal therefore appeared to have become infructuous. This, therefore, was evidently the dominant reason which persuaded the Tribunal to decide the case in the manner it did. Mr. Das contended that the Tribunal was competent to pass any order that it thought fit, and, in the instant case, where the propriety of the proceedings under section 34 could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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