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HIGH COURT OF CALCUTTA
CHAKRABARTI, BACHAWAT
GOUR MOHAN MULLICK - Appellant
Versus
COMMR OF AGRICULTURAL INCOME-TAX, WEST BENGAL - Respondent
Incometax Ref 55 Of 1951
Decided On : MAY 6, 1952
INCOME TAX - Appeal - Rejection of appeal on the ground of limitation - Whether appealable - Bengal Agricultural Income Tax Act (4 of 1944), Ss. 34, 35, 36.
Fact of the Case:
The assessee filed an appeal against the assessment order after the expiry of 30 days from the service of the notice of demand. The Assistant Commissioner asked the assessee to show cause why the appeal should not be rejected. The assessee showed cause and filed an affidavit purporting to explain the delay. The Assistant Commissioner was not satisfied that there was sufficient cause for not presenting the appeal within the period of 30 days and he passed an order refusing to admit the appeal.
Finding of the Court:
The order of the Assistant Commissioner refusing to admit the appeal was an order under Section 35 of the Bengal Agricultural Income Tax Act, 1944 and was therefore appealable to the Appellate Tribunal under Section 36 of the Act.
Issues: Whether an order of the Assistant Commissioner refusing to admit an appeal on the ground that it was not presented within 30 days from the relevant date and that there was no sufficient cause for condoning the delay is appealable to the Appellate Tribunal under Section 36 of the Bengal Agricultural Income Tax Act, 1944.
Ratio Decidendi: 1. The order of the Assistant Commissioner refusing to admit the appeal was an order under Section 35 of the Bengal Agricultural Income Tax Act, 1944 and was therefore appealable to the Appellate Tribunal under Section 36 of the Act. 2. The power of the Assistant Commissioner to admit an appeal in all cases is implicit in Section 34 of the Bengal Act corresponding to Section 31 of the Indian Act though it is expressly conferred in the case of condonation of the delay in the presentation of appeal. 3. The Assistant Commissioner has to see whether the provisions of Sub-sections 2 and 3 of Section 34 of the Bengal Act corresponding to Sub-sections 2 and 3 of Section 30 of the Indian Act have been complied with by the appellant. 4. The Assistant Commissioner has to see that as provided for by Sub-section 2 the appeal is in a prescribed form and is properly verified. 5. The Assistant Commissioner has also to see that the appeal has been presented in proper time in accordance with subsection 3 which provides that "the appeal shall ordinarily be presented within 30 days" of the relevant starting point. . . . . "but the Assistant Commissioner may admit the appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period." 6. The Assistant Commissioner has to judge each case on its own merits and find out if it is an ordinary or an extraordinary case. 7. If the Assistant Commissioner is satisfied that there is sufficient cause for the delay in the presentation of the appeal it is an extraordinary case and the appeal may be admitted in spite of the delay. 8. Otherwise, it is an ordinary case and the Assistant Commissioner may refuse to admit the appeal. 9. His finding that there is no sufficient cause for the delay in presentation of the appeal is the ground for the refusal to admit the appeal. 10. By refusing to admit the appeal, the Assistant Commissioner finally disposes of the appeal and thereby confirms the assessment appealed, from. 11. The power of "disposing of the appeal" is given by Section 35 of the Bengal Act corresponding to Section 31 of the Indian Act and not by Section 34 of the Bengal Act corresponding to Section 30 of the Indian Act. 12. The latter section furnishes certain grounds for disposing of an appeal but it does not confer the actual power of its disposal. 13. Refusal to admit the appeal at the preliminary stage is therefore an exercise of power under Section 35 of the Bengal Act corresponding to Section 31 of the Indian Act and is therefore made under that section and is therefore appealable under Section 36 of the Bengal Act corresponding to Section 33 of the Indian Act.
Final Decision: The question referred to the court was answered in the affirmative.
( 1 ) THE question raised by this reference has often arisen under the Income-tax Act and has been answered by different High Courts, other than this Court, in different ways. So far as this Court is concerned, it does not appear that the question came up on any previous occasion, either under the Income-tax Act or under the Bengal Agricultural Income-tax Act under which it has now arisen.
( 2 ) THE present reference is by the Agricultural Income-tax Appellate Tribunal and arises out of the following simple facts. In respect of his agricultural income for the accounting year, 1943-44, an assessment order was made on the assessee, Gour Mohan Mullick, on 5-1-1949. The notice of demand was received by him on the 1st of February next, but he did not prefer an appeal to the Assistant Commissioner till 30-5-1949. Since under Section 34 (2) the period of limitation for riling an appeal is 'ordinarily' thirty days from the receipt of the notice of demand, the Assistant Commissioner issued a notice to the assessee to show cause why the petition of appeal should not be rejected as time-barred. Cause was shown but as the Assistant Commissioner did not consider it satisfactory, he passed an order on 27-6-1949, concluding with the following words :"the delay is therefore not condoned. The appeal petition was not entertained under Section 34 (2 ). Inform appellant. "
( 3 ) I may interrupt myself for a moment to point out that in the statement of the case submitted by the Tribunal, the date of presentation of the appeal has been wrongly given as 27-6-1949. The order sheet of the Assistant Commissioner which is set out at page 15 of the paper-book makes it perfectly clear that the appeal was filed on the 30th May. It is regrettable that such an inaccuracy should have occurred in the Statement of the Case, particularly when the question is one of limitation.
( 4 ) TO revert to the facts of the case, the assessee next preferred an appeal to the Appellate Tribunal against the order of the Assistant Commissioner. By an order passed on 15-2-1951, the Appellate Tribunal held that the appeal was not competent, inasmuch as the order appealed from was not an order under Section 35 of the Act but an order under Section 34 (2) which was not appealable under Section 36 (1 ). The reasons of the Tribunal were given not in the order passed in the present case, but in the order passed in a connected appeal to which reference was made.
( 5 ) THEREAFTER, the assessee made an application to the Tribunal for a reference to this Court of the question relating to the maintainability of the appeal and the Tribunal has referred the following question of law:"whether an order, purporting to have been made under Section 34 (2) of the Bengal Agricultural Income-tax Act, refusing to admit an appeal on the ground that it was not presented within the period of limitation, there being, in the opinion of the Assistant Commissioner, no sufficient cause for not presenting the appeal within that period, is an order passed in appeal under Section 35 of the Act and as such appealable to the Appellate Tribunal?"
( 6 ) IT will be noticed that the question has been framed as a pure question of law without reference to any particular facts. The order contemplated by the question is an order by which no disputed question of limitation was decided but simply an order by which the Assistant Commissioner refused to condone the delay in filing the petition of appeal, the delay being assumed and apparently admitted.
( 7 ) THE provisions of law which are relevant to the question referred are Sections 34, 35 and 36 of the Bengal Agricultural Income-tax Act. Section 34 (1) provides for an appeal from, 'inter alia', an order of assessment made under Section 25 and Sub-section (2) of the section prescribes the period of limitation for filing such an appeal. The latter provision is to the effect that-"the appeal shall ordinarily be presented within thirty days of receipt o
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