JUDGMENT - Chagla, C.J.

[1] This is a reference which raises a very short but important question as to the competency of an appeal to the Tribunal. Assesment orders were passed by the Income tax Officer on 29.5.1948, with regard to the assessments for the years 1945-46, 1946-47 and 1947-48 and an appeal was preferred against these orders to the Appellate Assistant Commissioner, on 26-2--1949. The appellate Assistant Commissioner dismissed the appeal as being out of time. The contention of the assessee was that this appeal was in time because as required by law service of the notice of demand in respect of the assessment was not served upon him until 29-1-1949, and he having filed the appeal within 30 days of that service, viz., on 27-2-1949, the appeal was in time. This contention was not accepted by the Appellate Assistant Commissioner who held that the service of the notice of demand was validly made upon a representative of the assessee and therefore the appeal was barred by limitation. From this decision of the Appellate Assistant Commissioner an appeal was preferred to the Tribunal, but the Tribunal held that the appeal was in competent.

[2] Now, in order to decide the question of competency we have to consider whether the order of the Appellate Assistant Commissioner was made under Section 30(2) or Section 31. Section 30 (3) provides that an appeal shall ordinarily be presented within 30 days of the receipt of the notice of demand relating to the assessment and we are concerned in this case with only that part of Sub-Section (2) of Section 30, which goes on to provide that the Appellate Assistant Commissioner may admit an appeal after the expiration of the period of 30 days if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Then Section 31 provides for the hearing of the appeal and provides that the Appellate Assistant Commissioner shall fix a day and place for the hearing of be appeal, and may from time to time adjourn the hearing. Sub-section (3) provides that in disposing of an appeal the Appellate Assistant Commissioner may, in case of an order of assessment, confirm, reduce, enhance or annul an assessment. Now the contention of the Commissioner is that the order passed by the Appellate Assistant Commissioner was that the appeal against the orders of assessment was not entertained and dismissed. Therefore, according to the Commissioner there was no decision on merits. The order did not either confirm, reduce, enhance or annul the assessment and be appeal was dismissed on the preliminary ground that the appeal was time-barred and could not be entertained by the Appellate Assistant Commissioner.

Under the circumstances a contention is put forward that the order made by the Appellate Assistant Commissioner is not an order under Section 31. Now, Section 33 gives a right of an appeal to the Tribunal against an order of the Appellate Assis- tant Commissioner under either Section 28 or Section 31. Now, looking at the scheme of Sections 30 and 31 it is clear that a statutory right of appeal is conferred upon the assesses in cases that fall under Section 30(1) and it is not disputed that an appeal is permissible against an order of assesament under that section. Section 32 provides for the period o£ limitation and the period of limitation is 30 days. An inter, mediate stage between the presentation of the appeal and the hearing of the appeal in provided by the last clause of Section 30 (2) and that intermediate stage relates to those appeals which are out of time bat in which the appellant asks for condonation of delay from the Appellate Assistant Commissioner, and it is left to the decision of the Appellate Assistant Commissioner whether to condone or not to condone the delay. If ho is satisfied that there is sufficient ground for condoning delay, then he might condone the delay; on the other ban; if he is satisfied that there is no sufficient cause, then ho might not condone th

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