TMI Blog1964 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ound was that, in the year of account, the Assessee had sold the sugarcane from his lands to a company which had a factory for crushing sugarcane and had received only a single payment of Rs. 18,000 and odd from the company and claimed that he had incurred an expenditure of Rs. 1,460 per acre. He claimed that he should have been assessed only on this receipt after deducting the expenditure. This claim was rejected by the Agricultural Income-tax Officer and Rs. 800 was determined as the net income. The Appellant contended that this decision was not correct. The third ground was that the Agricultural Income-tax Officer had wrongly included in the assessment income which really belonged to one Rajalingam on account of plantain cultivation in the lands in Marudur village and this portion of the income should be excluded. In the appeal, Appellate Assistant Commissioner confirmed the decision of the Agricultural Income-tax Officer on the first and second points. In regard to the third point, he was of the opinion that the matter required further investigation to decide the quantum of the income that really belonged to Rajalingam. He set aside the order of the Agricultural Income-tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter be precluded from disputing its correctness. In the case of a decision involving the passing of a preliminary and final decree, Section 97, Code of Civil Procedure precludes a party who has not appealed from the preliminary decree from disputing its correctness in any appeal which may be preferred from the final decree. Section 105(2) of the Code of Civil Procedure refers to an order of remand made after the commencement of the Code of Civil Procedure from which an appeal lies. Such orders fall under Section 104 of the Code of Civil Procedure read with Order XLIII, Rule 1, Code of Civil Procedure. Even Order XLIII, Rule 1, Code of Civil Procedure, according to its terms, does not apply to all orders of remand. Thus, Order XLIII, Rule 1(u), of the Code of Civil Procedure, provides that an appeal shall lie from an order under Order XLI, Rule 23, remanding a case, where an appeal would lie from the decree of the Appellate Court. In Secretary of State v. Allu Jagannadham I.L.R. (1941) Mad. 850 (F.B.) a Full Bench of this Court observed that in remanding the suit in that case, the lower appellate Court had set aside the trial Court's decree and, therefore, there was no decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand. 5. The rule in Section 105(2) of the Code of Civil Procedure thus laying down the restriction against raising contentions in a subsequent appeal when the original order of remand had not been appealed from does not lay down any rule of general application to other proceedings not governed by the Code of Civil Procedure, as for example proceedings before the hierarchy of quasi-judicial Tribunals under a tax enactment as we have in this case. Such a question arose in the Bombay High Court in Chatrappa Tippana v. Dastagir Saheb Mohamad Saheb I.L.R. (1952) B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontends is not binding upon him. And in order to do this he was not bound to appeal against every interlocutory order which was a step in the procedure that led up to the Award. 6. It, therefore, becomes important to find out whether the order of remand by the Appellate Assistant-Commissioner, dated 26th November 1962, was really interlocutory in nature. No doubt, it was an order under Section 31(5)(a)(ii) of the Agricultural Income-Tax Act which gives power to the Appellate Assistant Commissioner to set aside the income-tax officer's order and remand the case for fresh decision. Such an order is appealable under Section 32(1). But as the Supreme Court has pointed out in Satyadhyan Ghosal v. Smt. Deorajin Debi (1960) 3 S.C.R. 590, the test of appeal ability will not be decisive of the matter. What will be relevant is the substance of the order. The order in effect set aside the entire assessment on the Assessee, and the income-tax officer had to make a fresh assessment in the light of the findings of the Appellate Assistant Commissioner under two grounds, but the third ground was left open for the income-tax officer to decide. It is obvious that a finding on only a portion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the latter made a recompilation and included a certain sum as unassessed foreign income of earlier years remitted to India. This was contrary to the directions given by the Appellate Tribunal. The Assessee then appealed to the Appellate Assistant Commissioner against the inclusion. The Appellate Assistant Commissioner declined to admit the appeal on the ground that the Assessee had no right of appeal under Section 30, because there had been no assessment under Section 23 and no notices of demand served on him under Section 29. The Assessee, however, feeling still aggrieved filed a miscellaneous application before the Appellate Tribunal which observed that the income-tax officer by including the additional sum above referred to, did not give effect to the Appellate Tribunal's order, and thereupon cancelled the inclusion. Then the Appellate Tribunal was asked to state a case for reference to the High Court under Section 66(1). This was done when the matter came up before the High Court. The High Court finally decided that the reference was incompetent. The Supreme Court while affirming this decision in the appeal made to it, observed that the decision of the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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