An order of the Appellate Assistant Commissioner dismissing an assessee's appeal on the ground of incompetence is an order under Section 31 of the Income-tax Act, 1922 and is appealable under Section 33(1) of the Act.

RAY, C. J.

( 1 ) UNDER Section 66, Income-tax Act, this Court asked the appellate Tribunal to state a case which has since been done. The questions referred to us are :

" (1) Whether the order passed by the Appellate Commissioner, diamissing the assessee's appeal on the ground of its incompetence, according to the proviso to Sub-section (1) of Section 30 of the Act, is one under Section 31 and as such appealable under S. 33 (1) of the act, and (2) Whether such an order passed before expiry of the time either as originally fixed or later extended by competent authority for payment of the tax IB good in law. "

( 2 ) OF the two questions, the second one strictly falls within the scope of the appeal before the Appellate Tribunal in the event of our answer to question no.

(1) being in the affirmative. When the appeal goes back to the Appellate tribunal it will be for them to consider whether the order of extension, if any, granted by the income tax authorities was a valid order and would conduce to the assessee being considered for the purpose of the proviso to Section 80 as one who has not committed any default, or who has not been in arrears in respect of income-tax. We have not been pasted with all the facts and circumstances which should have enabled us to answer this question with any amount of certainty. We therefore leave the question at large.

( 3 ) WITH regard to question No. (1), our answer should be in the affirmative. As the point has been thoroughly discussed in our preliminary order issuing a writ to the Tribunal to state a case, I do not like to reiterate what I have stated before. At this stage, a decision of the Bombay High Court Reports, Commr. of income-tax, Bombay City v. Mysore Iron and Steel Works, 1949-17. L. R. 473: (A.. R. (36) 1949 Bom. 400) has been cited before us. The position, however, is clear, namely, that the order impugned of the Appellate Assistant Commissioner cannot but be one under Section 31 of the Act. According to Sub-section (1) of section 30, certain orders as defined in the said sub-section are made appealable. An order under Sub-section (1) of Section 46 that is, an order levying a penalty upon an assessee for non-payment of income-tax within the due date, is one such. The proviso limits the right of appeal to those persons who must have paid the tax, or in other words, to those who must not have been in arrears in respect of the payment of the tax. When an appeal is filed against this order, it is a matter for consideration of the appellate authority whether such an appeal does lie, or, in other words, whether the appeal is competent, that is to say, whether the assesses, appellant has fulfilled the conditions which are pre-requisite for an appeal. Within the provisions of section 31 there is nothing to empower an appellate authority to pass any order by way of admitting an appeal. Admission of an appeal has not been sufficiently provided for within the purview of the Income-tax Act, but it is not strange to the scheme of the Act. By contrast, I refer to the admission of an appeal as provided for in the concluding portion of Sub-section (2) of Section 30. That sub-section provides, in the main, a time limit for appeals of various classes, the starting points of such time limits varying according to the circumstances of each of the cases mentioned therein, The sub-section concludes with the following words : "but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. " this makes it clear that the stage of admission is interposed between the presentation of an appeal and its bearing and disposal under Section 31 in cases in which an appeal is not presented within the prescribed time-limit. The necessary inference, therefore, is that in all other oases the appeals, as soon as presented, must come up for decision under Section 31.

( 4 ) LOOKING to how