TMI Blog1950 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... as time barred on the date of their hearing was an order passed under Section 31 or under Section 30, clause (2), of the Income-tax Act? This reference was made upon an application by Diwan ChandAtma Ram, a firm of Simla, in which it was prayed that three questions be referred to the High Court under Section 66(1) of the Income- tax Act. In the application seven questions in all were formulated but the prayer clause referred only to three. The Income-tax Appellate Tribunal took the view that there was in reality only one question of law arising in the matter and that the other two questions were merely corollaries to the first question. It, therefore, referred only one question namely, the one cited above for our decision. Messrs. Diwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners informing them of the date of hearing. The appeals should have been presented on the 20th of February, 1946, and as the packet containing the appeals was not delivered until the 22nd, the appeals were barred by time. When the matter came up before the Appellate Assistant Commissioner on the date fixed he declined to extend the time and dismissed the appeals as barred by time. An appeal against this order of dismissal was preferred to the Income-tax Appellate Tribunal. The Tribunal took the view that the appeals had been dismissed under Section 30 and no order under Section 30 of the Act was appealable. Upon this the petitioners applied to the Tribunal for stating a question of law under Section 66(1) of the Act and the refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. The scheme of the Act contemplates that an appeal can only be heard under Section 31 on merits if the preliminary defect of limitation is not present or has been removed. In the circumstances from the wording of the section it appears to follow that in the present case the appeal was not heard on merits, it could not be said to have been formally admitted and the date of hearing fixed was merely for the purpose of determining whether time should be extended or not. The Appellate Assistant Commissioner declined to extend limitation and so the order dismissing the appeal was really an order passed under Section 30 and not under Section 31. In this view of the matter it must be held that the order was not appealable. Learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed under Section 31. A Division Bench of the Orissa High Court, however, took the contrary view and held that the appeal was competent. The reasoning upon which the judgment proceeds does to some extent support the case of the petitioners before us but the facts of that case were different and the case is distinguishable. Indeed the distinction was pointed out by the learned Judge himself who observed:- By contrast, I refer to the admission of an appeal as provided for in the concluding portion of sub-section (2) of Section 30. That sub-section provides, in the main, a time-limit for appeals of various classes, the starting points of such time-limits varying according to the circumstances of each of the cases mentioned therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expires, then that statutory right to present an appeal goes; and an appeal can only be entertained provided it is admitted by the Appellate Assistant Commissioner after condoning the delay. Therefore before an appeal could be admitted in this case, an order from the Appellate Assistant Commissioner was requisite that the delay had been condoned. With these observations with very great respect I find myself in entire agreement. Learned counsel for the petitioners contended that in the present case the appeal had in fact been admitted as a notice informing the petitioners of the date of hearing was issued. The issuing of such a notice, however, does not imply that the appeal had been admitted in the sense contemplated by sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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