TMI Blog1953 (3) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 30(2) and therefore refused to entertain the appeal preferred by the assessee from that order, and the question submitted to us by the Tribunal in substance raises this question. Now, a few facts might be stated. The assessment order was passed on the 30th of April, 1949, and the notice of demand was served upon the assessee on the 13th of February, 1950. The last day for preferring the appeal to the Appellate Assistant Commissioner was the 16th of March, 1950. For certain reasons which it is not necessary to go into at the present stage, the assessee did not post the memo, of appeal from Ahmednagar where he was living up to the 16th of March, 1950, and the petition for appeal reached the Appellate Assistant Commissioner in Poona to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, therefore, expressed the opinion that he was unable to condone the delay and the order he passed was that the appeal was rejected as time-barred, and the question arises whether on these facts the order of the Appellate Assistant Commissioner falls under Section 31 or under Section 30(2). Now, in our decision in K.K. Porbunderwalla v. Commissioner of Income-tax, Bombay City [1952] 21 I.T.R. 63, we considered the scheme of Sections 30 and 31 and we pointed out that there was an intermediate stage between the presentation of the appeal and the hearing of the appeal as provided by the last clause of Section 30(2) and that intermediate stage relates to those appeals which were out of time, but for which the appellant asked for condonati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, having taken the view at the intermediate stage under Section 30(2) that delay should be condoned, and having admitted the appeal, to revise his decision and, when the appeal comes on for hearing under Section 31 to take a different view and dismiss the appeal on the ground that no sufficient cause was shown for condoning the delay. If he does so, even though his order is merely refusing to condone the delay, the order would be under Section 31 and not under Section 30(2). It is clear that no notice for the hearing and final disposal of the appeal can be issued and no hearing of the appeal can be fixed except under Section 31. Sir Nusserwanji says that it may be that the Appellate Assistant Commissioner was in error in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal was time-barred merely because he has passed an order under sub-section (2) of Section 30 of the Income-tax Act, 1922, admitting it, and that High Court further held that where the Appellate Assistant Commissioner of Income-tax had admitted the appeal under Section 30 (2) of the Act a subsequent order of dismissal on the ground that the appeal was time-barred after the issue of the notice to the assessee fixing a date and place for the final hearing and final disposal was an order under Section 31 of the Act. Sir Nusserwanji says that there is no order here admitting the appeal. As we have already pointed out in law the Appellate Assistant Commissioner must be deemed to have admitted the appeal and Section 30(2) does not contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under Section 31 does not imply that the appeal had been admitted in the sense contemplated by sub- section (2) of Section 30. With respect, we are unable to agree with the view of the East Punjab High Court. In our view the view taken by the Allahabad High Court is the better view and, with respect, we prefer to accept the view taken by the Allahabad High Court to the view taken by the East Punjab High Court. It must be borne in mind that a dismissal of the appeal by the Appellate Assistant Commissioner deprives the assessee of a right to challenge the assessment made by the Income-tax Officer, and if anything, Sections 30 and 31 should be liberally construed in favour of the assessee rather than against him so far as to deprive him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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