TMI Blog1966 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ether, in the particular facts of the case, an appeal lay to the Appellate Assistant Commissioner ? and (2) If the answer to the first question is in the affirmative, whether a further appeal lay to the Appellate Tribunal in the circumstances of the case ? " The relevant assessment year is 1948-49. Gopi Lal (hereafter referred to as the assessee) was a partner of a firm known as Messrs. Behari Lal Ghasi Ram, Delhi. The said firm went to the Income-tax Appellate Tribunal in appeal, being Appeal No. 321 of 1956-57, and the question therein was whether a sum of Rs. 24,500 should be taxed in the hands of the firm of Gopi Lal. Gopi Lal, who was present at the time of the hearing of the appeal before the Income-tax Appellate Tribunal, express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Mr. Whig, the learned counsel for the assessee, has frankly pointed out that he has no grievance against the exclusion of Rs. 24,500 from the income of the firm and its inclusion in the assessee's hands as his exclusive income. His grievance, however, is against the reallocation made in the hands of the partners, including the assessee, in pursuance of the directions of the Income-tax Appellate Tribunal. The order of the Income-tax Officer making the reallocation has not been included in the record and Mr. Hardy could not find out any express order to that effect even in the original record. Whether or not an appeal under section 30 would be competent depends on the terms of the said provision as an appeal is always a creation of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. " In compliance with the above direction the Income-tax Officer revised the assessments of income-tax and made certain major amendments in his original order. The assessee, a partnership firm, at the instance of which the Tribunal had given the above direction, being dissatisfied with the amendments made by the Income-tax Officer, preferred appeals to the Appellate Assistant Commissioner who entertained the same and decided them on merits. The assessee then preferred second appeals to the Tribunal for the second time in which a preliminary objection was taken that the same were not maintainable on the ground that the orders passed by the Income-tax Officer in pursuance of the directions of the Tribunal were not orders under section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23 and, consequently, when a partner files an appeal, he, in effect, objects to the amount of income assessed under section 23. Again if a partner is not satisfied with the reallocation and says that the same is not in accordance with the direction of the Tribunal he, in effect, denies his liability to be assessed under the Act to the extent to which he claims to have been wrongly assessed. Partial denial of liability to be assessed is, I think, comprised in the expression " denying his liability to be assessed under this Act. " In Commissioner of Income-tax v. Kanpur Coal Syndicate, their Lordships of the Supreme Court observed : " Under section 30, an assessee objecting to the amount of income assessed under section 23 or the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e individually assessable on their shares in the total income of the firm, may appeal against any order of an Income-tax Officer apportioning the income of the firm between the several partners. As I have pointed out already, the grievance of the assessee is against the apportionment and, therefore, his appeal would fall in terms under the said second proviso. It should be remembered that statutes pertaining to right of appeal have to be given a liberal construction since they are remedial. A right of appeal will not be restricted or denied unless such a construction is unavoidable. Our courts recognise the rule that an appeal of a cause is a valuable right to a litigant and, in the absence of unmistakable indications to the contrary, statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d disposal of the appeal and if an order dismissing the appeal as barred by limitation be one passed in appeal, it must fall within section 31. On the same process of reasoning it appears to me that the order of the Appellate Assistant Commissioner dismissing the appeal as incompetent would be an order passed under section 31. As a matter of fact, the order is itself described as one under section 31. That being so, the appeal before the Appellate Tribunal must be held to be competent. The answer to the second question must, therefore, be also in the affirmative and in favour of the assessee. In the result, both these questions are answered in favour of the assessee. The assessee will have the costs of this reference. R. S. NARULA J.- I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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