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1954 Supreme(Ori) 42
HIGH COURT OF ORISSA
NARASIMHAM,MISRA, JJ.
Bansidhar Mohanti
Versus
Commr.of Income-tax
S.J. C. No.4 of 1952
Decided On : 20-09-1954
B. Mohanty and C.K. Ghosh, for Petitioner; G.C. Das, for Opposite Party.
An order of the AAC refusing to admit an appeal under S.30(2) of the Income-tax Act, 1922, is not an order under S.31 of the Act and, therefore, no appeal lies to the Tribunal against such an order.
Headnote:
INCOME TAX - APPEAL - LIMITATION - ORDER REFUSING TO ADMIT APPEAL - WHETHER AN ORDER UNDER S.30(2) OR S.31, INCOME-TAX ACT.
Fact of the Case:
The assessee filed an appeal before the Appellate Assistant Commissioner (AAC) against an assessment order. The AAC refused to admit the appeal as it was barred by limitation. The assessee then filed an appeal before the Appellate Tribunal (Tribunal), which held that no appeal lay before it as the AAC's order was passed under S.30(2) of the Income-tax Act, 1922, and not under S.31 of the Act. The Tribunal referred the following question of law to the High Court: Whether on the facts and circumstances of the case, the AAC's order not admitting the appeal was an order passed under S.30(2) or S.31 of the Act.
Finding of the Court:
The High Court held that the AAC's order was an order passed under S.30(2) of the Act and not under S.31. The Court observed that S.31 of the Act would apply only after an appeal had been admitted by the AAC under S.30(2). In the present case, the AAC had refused to admit the appeal and, therefore, the order was not an order under S.31. The Court also held that the Tribunal had no jurisdiction to hear the appeal under S.33 of the Act as the AAC's order was not an order under S.31.
Issues: Whether the AAC's order refusing to admit the appeal was an order passed under S.30(2) or S.31 of the Income-tax Act, 1922.
Ratio Decidendi: The Court held that the AAC's order was an order passed under S.30(2) of the Act and not under S.31. The Court observed that S.31 of the Act would apply only after an appeal had been admitted by the AAC under S.30(2). In the present case, the AAC had refused to admit the appeal and, therefore, the order was not an order under S.31.
Final Decision: The High Court answered the question of law in the affirmative, holding that the AAC's order was an order passed under S.30(2) of the Act and not under S.31.
Judgement
NARASIMHAM, J.: - This is a reference by the Income-tax Appellate Tribunal under S.66(1), Income-tax Act, for a decision by this Court of the following question of law:
"Whether on the above facts and circumstances of this case the order of the Appellate Assistant Commissioner not admitting the appeal which was admittedly barred by limitation was an order passed under S.30(2), Income-tax Act, or was an order passed under S.31 of the Act."
2. The material facts are as follows:
The assessee was assessed to income-tax for the year 1946-47 and the demand notice was served on him on 6-5-1948. He applied for a copy of the assessment order on 28-5-1948 and it was supplied to him on 9-6-1948.
Under S.30(2), Income-tax Act, he was entitled to file an appeal against the assessment order, before the Appellate Assistant Commissioner within thirty days of the date of receipt of the notice of demand after excluding the time taken for obtaining a copy of the assessment order. Thus the appeal should have been filed before the Appellate Assistant Commissioner on 18-6-1948.
As it appeared to be prima facie time barred the Appellate Assistant Commissioner called upon the assessee to satisfy him about the existence of sufficient cause for not presenting the appeal within the time limit. The assessee showed cause and stated that he suffered from rheumatism during the relevant period. His cause was, however, held to be not satisfactory and the Appellate Assistant Commissioner by his order dated 3-9-1948 refused to admit the appeal.
Thereupon, the assessee filed an appeal before the Appellate Tribunal who held that inasmuch as the Appellate Assistant Commissioner had dismissed the appeal under S.30(2), Income-tax Act, no appeal lay before the Appellate Tribunal under S.33 of that Act but it referred the case to the High Court under S.66(1) of the Act.
2a. Sub-section (1) of S.30, Income-tax Act, confers on the assessee a right of appeal against an assessment made by the Income-tax Officer in various circumstances which it is unnecessary to describe in detail here. It may be assumed that in the present case the assessee had a right o£ appeal under that sub-section against the order of assessment of the Income-tax Officer.
But sub-s. (2) of that section says that the appeal shall ordinarily be presented within thirty days of receipt of the notice of demand relating to assessment and the last portion of that subsection confers discretion on the Appellate Assistant Commissioner to admit an appeal after the expiry of the period of limitation if he was satisfied that the appellant had sufficient cause for not presenting it within that period.
Section 31 describes in detail the procedure to be followed by the Appellate Assistant Commissioner for the hearing of the appeal. It was rightly conceded by Mr. Mohanty that the provisions of S.31 would apply only after an appeal had been admitted under S.30(2). After such admission the Appellate Assistant Commissioner may pass any order under sub-s. (3) of S.31. Sub-section (1) of S.33 confers on the assessee a further right of appeal to the Appellate Tribunal against an order passed by the Appellate Assistant Commissioner under S.31.
Sub-section (4) of S.33 describes the procedure to be followed by the Appellate Tribunal for the hearing of the appeal and for passing final orders thereon. Section 66(1) says that within sixty days of the date upon which an assessee is served with notice of an order passed by the Appellate Tribunal under sub-s. (4) of S.33 he may require the Tribunal to state a case for the decision of the High Court. The Tribunal has purported to act in pursuance of this sub-section. It will be obvious from a mere reading of these sections that the jurisdiction of the Tribunal to state a case for the decision of the High Court under S.66(1) arises only in respect of those orders of the Tribunal which come within the scope of S.33 and further the jurisdiction of the Tribunal as an appellate authority
