TMI Blog1967 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... aurashtra Income-tax Ordinance, 1949, calling upon the assessee to file a return of his income for the assessment year 1949-50. In response to the notice, the assessee filed a return of his income under protest and in that return he disclosed an income of Rs. 46. Immediately after filing the return the assessee took certain proceedings for the purpose of challenging the jurisdiction of the Income-tax Officer, but ultimately he failed in preventing the Income-tax Officer from proceeding with the assessment, and the Income-tax Officer made an assessment order dated 17th December, 1958, holding that five cash credit entries appearing in the books of account of the assessee and aggregating to Rs. 4,74,000 represented undisclosed income of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary objection was raised on behalf of the Income-tax Officer against the maintainability of the appeal. The Income-tax Officer urged that since there was no substantive order passed by the Appellate Assistant Commissioner under section 31(3) disposing of the appeal and the order passed by the Appellate Assistant Commissioner was merely an interim order causing further inquiry to be made by the Income-tax Officer under section 31(2), no appeal lay to the Tribunal under section 33(1) and the appeal was, therefore, not maintainable. The Income-tax Officer relied on a decision of the Bombay High Court in Girdher Javer and Co. v. Commissioner of Income-tax, in support of this preliminary objection. The Tribunal however rejected the preliminary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Assistant Commissioner calling for a remand report from the Income-tax Officer is appealable to the Appellate Tribunal ?" If the answer to the above question is in the affirmative, then " (2) Whether on the facts and in the circumstances of the case, was the order passed by the Appellate Assistant Commissioner calling for a remand report from the Income-tax Officer in accordance with law and justified in the circumstances ?" It is apparent that the second question can arise for consideration only if the first question is answered in the affirmative and, therefore, we must first proceed to consider the first question. The first question raises the point whether an appeal lies to the Tribunal against an order passed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make such further inquiry but that would be merely an interim order for the purpose of obtaining further material on the basis of which he can dispose of the appeal. Such an order would not stand on any different footing from a decision taken by him to make further inquiry himself. The appeal which is provided under section 33(1) is an appeal against a substantive order disposing of the appeal and such a substantive order may be made under any of the different clauses of section 31(3) but no appeal lies under section 33(1) against a decision of the Appellate Assistant Commissioner under section 31(2) to make further enquiry himself or to cause further enquiry to be made by the Income-tax Officer. This view appears to be clear on princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Girdher Javer's case is, therefore, a direct authority for the proposition that no appeal lies under section 33(1) or 33(2) against a direction given by the Appellate Assistant Commissioner under section 31(2). The Tribunal relied on the decision of the Patna High Court in Jitan Ram Nirmal Ram v. Commissioner of Income-tax and held that this decision was a direct authority for the proposition that an appeal lies to the Tribunal under section 33(1) against a direction issued by the Appellate Assistant Commissioner under section 31(2). But when we turn to this decision we find that it does not say anything of the sort. The order of the Appellate Assistant Commissioner, which was impugned in appeal before the Tribunal in that case, was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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