TMI Blog1950 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act? (2) Whether where the figures of an assessment are corrected under Section 35(4) of the Income-tax Act without having the effect of enhancing the assessment or reducing a refund and a corrected notice of demand is issued such a notice of demand amounts to notice of demand under Section 29 of the Act and confers a right of appeal on the applicant from the date of its receipt? (3) Whether rule 21 of the Income-tax Rules framed under Section 59 of the Act is ultra vires of the powers of the Central Board of Revenue inasmuch as it prescribes the attachment of the notice of demand to the memo of appeal? (4) Whether in the circumstances of the case the applicant's appeal filed on 24th of August, 1946, in form B aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30th August, 1946, as the notice of demand. The Appellate Assistant Commissioner held that the appeal was barred by time. He refused to condone the delay and rejected the memorandum of appeal on the 29th September, 1946. Against that order an appeal was filed before the Tribunal but it was held that no appeal lay as the order was not an order under Section 31 but was an order under Section 30(2). Recently in another case (I.T. Miscellaneous Case No. 6 of 1950), Messrs. Mohd. Naim Mohd. Alam. Kanpur v. Commissioner of Income- tax, U.P., Lucknow decided on 26th September, 1950 See page 58 supra.) a question identical to the question No. (1) arose and was answered. The view taken by the Bench was that where the memorandum of appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of demand under Section 29, from the dated of service of which a fresh period of limitation has to be calculated. Section 29 of the Income-tax Act is as follows:- When any tax or penalty is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such tax or penalty a notice of demand in the prescribed form specifying the sum to payable. Learned counsel has urged that when on the August 30, 1946, the application under Section 35 was granted the previous notice of demand must be deemed to have been cancelled and a fresh notice of demand issued to the assessee. A carbon copy of the notice of demand was shown to us and we fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etriment of the assessee. Where the order is in favour of the assessee, all that can be said is that a part of the demand had been cancelled or rescinded allowing the rest to stand. In such a case no question of a fresh notice of demand under Section 29 becomes necessary. That is our answer to the second question framed by the Tribunal. The assessee had, therefore, no fresh right of appeal from the date of the receipt of the notice of the order dated 30th August, 1946. In view of our answer to question No. (2) of the assessee's appeal filed on the 26th August, 1946, was clearly time-barred and, as the Appellate Assistant Commissioner refused to condone the delay, it is not necessary to answer the third and fourth questions which do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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