Satyanarayana Rao, J.-The question referred to us under section 66(1) of the Indian Income-tax Act by the Income-tax Appellate Tribunal is:

“Whether on the facts and in the circumstances of the case the order of the Appellate Assistant Commissioner, rejecting the appeal on the ground that it was time barred was not an order under section 31 of the Indian Income-tax Act and against which no appeal lay to the Tribunal.”

The following facts relevant for the consideration of the question are taken from the statement of the case by the Appellate Tribunal. The assessees are the joint receivers appointed by the High Court for the management of the estate of the late Md. Umar Sahib of Madras. The receivers were, however, discharged after the application for reference under section 66(1) was filed before the Tribunal and in their place, the heirs of the deceased were brought on record as respondents For the accounting year 1943 a return of the income was made treating the estate as one single unit. The heirs, however, raised the contention that the assessment should be made upon them individually in proportion to the shares of the income which they obtained from the estate to which they succeeded. While that assessment was pending enquiry before the Income-tax Officer, for the subsequent year 1944, a return was again submitted by the assessees for separate assessment The claim of the assessees for separate assessment was rejected by the Income-tax Officer for the two years. Against the order of the Income-tax Officer, appeals were preferred to the Appellate Assistant Commissioner and they were pending. For the accounting year 1945 again a similar claim was made by the heirs in their return submitted to the Income-tax Officer, and following the previous decision the Income-tax Officer again negatived the claim. Against this order also there was an appeal to the Appellate Assistant Commissioner, which was filed on the 28th September, 1946. The appeal was however out of time by 64 days. In a covering letter which they submitted to the Appellate Assistant Commissioner alone with the memorandum of appeal, the assessees prayed for the condonation of the delay on the ground that the staff which received the order of the Income-tax Officer mislaid it and omitted to bring it to the notice of the assessees for the purpose of filing the appeal. The Appellate Assistant Commissioner was not satisfied with that explanation and therefore rejected the appeal on nth October 1946 An appeal was thereafter preferred to the Appellate Tribunal against the order of the Appellate. Assistant Commissioner rejecting the appeal. This appeal also was filed out of time but the Appellate Tribunal condned the delay accepting the explanation offered by the assessees. When the appeal was taken up lor hearing by the Tribunal, the departmental representative raised the preliminary objection that no appeal lay as the order of the Appellate Assistant Commissioner rejecting the appeal was an order under section 30 of the Income-tax Act which was not appealable and that therefbre the Tribunal had no jurisdiction to hear and dispose of the appeal. The Tribunal did not accept the contention, as in their opinion, the order of the Appellate Assistant Commissioner rejecting the appeal as time-barred Was a disposal of the appeal, and as the only section which empowered the Appellate Assistant Commissioner to dispose of an appeal was section 31, the order of the Appellate Assistant Commissioner should be treated a one made under section 31 of the Act. Therefore the order, it was held by the Appellate Tribunal, was appeal able. In the result the Tribunal allowed the appeal of the assessees and set aside the order of the Appellate Assistant Commissioner and remitted the case back for hearing. The question set out above was referred to this Court at the instance of the Income-tax Commissioner.

On behalf of the Commissioner it was contended by Mr. Rama Rao Sahib, the learned advocate, tha

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