TMI Blog1954 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, adjourned from time to time for a very long period, Ultimately it came before the Appellate Assistant Commissioner on 8th April 1952 when it was discovered that the appeal, though filed in time, was defective as there was no copy of the notice of demand attached to it. The appellate Assistant Commissioner accordingly dismissed the appeal in these words - It is the appellant's duty to see that the appeal petition was complete in all respects before filing it before an Appellate Authority. As the appellant failed to do it I decline to admit the appeal , 3. The assessee preferred an appeal against this order to the Appellate Tribunal which held that the order, being under Section 30(2) of the Act, was not appealable. The Tribunal, however, acceded to the assessee's petition under Section 66(1) and framed the above question. It appears from the documents printed that the case of the assessee has been that in fact at the time when the appeal was filed the necessary document was filed along with it, and he has been asking for an enquiry into this matter, but for the purpose of answering the question framed for us we must assume that the appeal was in fact filed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The appeal shall be in the prescribed form and shall be verified in the prescribed manner . Section 31 deals with the hearing of the appeal and Sub-section (1) reads- 31(1) The Appellate Assistant Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing . 6. The question we have to consider is whether, once having issued notice under Section 31(1) for the hearing of the appeal, the order of the Appellate Assistant Commissioner refusing to admit the appeal on some technical point such as limitation or, as in the present case, failure to file the appeal in the proper form, can possibly be deemed to have been passed under Section 30. Undoubtedly dismissing or refusing to admit the appeal on one of these technical grounds is not one of the ways of disposing of the appeal which are contained in Sub-section (3) of Section 31, but 'prima facie' it would appear that once a notice has been issued under Sub-section (1) any order disposing of the appeal in any manner whatsoever must be deemed to have been passed under Section 31 and this view had been taken by other Courts besides the Allahabad Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y covered by any of the provisions of Sub-section (3) regarding the disposal of appeals, is nevertheless an order under Section 31 which entitles the aggrieved party to file an appeal before the Appellate Tribunal and also in due course to have a case stated under Section 66. 8. In 'Commr. of Income Tax v. Shahzadi Be-Gum', AIR 1952 Mad 232 (E) a Division Bench of the Madras High Court had held that an order of the Appellate Assistant Commissioner refusing to condone the delay in filing an appeal and dismissing the appeal as time-barred is an order under Section 31 of the Act and is, therefore, appealable to the Appellate Tribunal. The following passage in the judgment is relevant: The appeal may be an Irregular appeal or an incompetent appeal or even may be an appeal which was presented out of time. But still the Appellate Court has to apply its mind before it rejects the appeal on a preliminary ground that no case for condoning the delay was made out or that the formalities required by law had not been complied with or that the appeal was incompetent. In considering these questions the appellate Court is undoubtedly exercising an appellate power and not a power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dismissing the appeal as barred by time was an order under Section 31 and so appealable. 10. Finally there is the case of 'Champalal Asharam v. Commr. of Income Tax, Bombay, South',: AIR 1954 Bom 112 (G) also a decision of Chagla, C. J., and Tendolkar, J. In that case the appeal of the assessee was apparently barred by time and the Assistant Commissioner had issued a notice to the assessee to show cause why the delay in filing the appeal should be condoned. After hearing him on this point the Appellate Assistant Commissioner did not pronounce any order on it but issued a notice under Section 31(1) fixing a hearing of the appeal and at that hearing he dismissed the appeal as barred by time and refused to condone the delay. It was held that after the assessee had shown cause the Appellate Assistant Commissioner should have decided whether he should condone the delay or dismiss the appeal, and, not having dismissed the appeal, in law he must be deemed to have admitted the appeal and to have condoned the delay. Once he issued a notice under Section 31 and passed an order, even though the order was in effect a reconsideration of his earlier decision it was still an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad v. Commr. Income Tax, Central and U. P.', AIR 1935 All 572 (I); and -- 'Commr. of Income Tax, Bombay city v. Mysore Iron and Steel Works', AIR 1949 Bom 400 (J), were cited with approval, but those decisions do not appear to be in conformity with the later views of these two Courts expressed in the cases of 'Mohd. Naim Mohd. Alam', (A), and 'Chaman Lal Asharam', (G), and with the utmost respect I do not feel that I can agree with the view of Khosla J., that the issue of a notice under Section 31 (1) makes no difference to the section under which the order dismissing the appeal must be deemed to have been passed. 13. The other case relied on is the decision of the Supreme Court in Commr. of Income Tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar, AIR 1953 SC 118 (K). The facts of this case are somewhat peculiar. The assessee had his headquarters in India and also carried on a money-lending business at Maubin, Kaulalumpur and Singapore in Malaya. He had challenged the assessment of the Income Tax Officer for the year in question by way of appeal to the Appellate Assistant Commissioner, and also by a further appeal to the Appellate Tribunal, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really held therein was that an order of an Appellate Tribunal directing an In-come tax Officer to give effect to its directions contained in an appellate order under Section 33 (4) of the Act after he had apparently failed to do so, is not an appellate order within the meaning of Section 33 (4) which can give rise to a reference to the High Court. There is, however, one passage in the judgment of Das J., which appears to support the contention ,of the Commissioner in the present case. This passage reads- Therefore, in carrying out the directions of the Tribunal and in doing what he did on 26-9-1945 the Income Tax Officer cannot be regarded as having acted under Section 23 or Section 27 of the Act and that being the position no appeal lay from that order of the Income Tax Officer under Section 30 (1) of the Act. The result of it was that there was no proper appeal before the Appellate Assistant Commissioner such as is contemplated by Section 30 (1) therefore, the order made by the Appellate Assistant Commissioner cannot be regarded as an order made by him Under Section 31(3), for an order under Section 31(3) can only be made in disposing of an appeal properly filed under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to consider the question whether, once an appeal has been admitted in the sense that a notice fixing the time and place for the hearing of the appeal has been issued under Section 31 (1), the order of the Appellate Assistant Commissioner disposing of the appeal is one under Section 30 (2) or under Section 31. As a matter of fact in the present case I do not see how the order can be said to be one under Section 30 (2) since the appeal was not rejected on the ground that it was barred by time, but on the ground that it was not in the proper form by reason of the fact that a copy of the demand notice had not been attached to the memorandum of appeal, and if the appeal could be dismissed at all on this ground it would appear to me that this could be done only under Section 30 (3), and, as has been pointed out in some of the cases referred to above, neither Sub-section (2) nor Sub-section (3) of Section 30 specifically contains any provision for rejecting an appeal. All that Sub-section (2) says is that an appeal shall be ordinarily filed within 30 days of the receipt of the notice of demand and the Appellate Assistant Commissioner may condone a delay, and Sub-section (3) simp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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