An appeal lies to the Appellate Assistant Commissioner against an order of the Income-tax Officer made under section 23 of the Indian Income-tax Act, 1922, and a further appeal lies to the Appellate Tribunal against an order of the Appellate Assistant Commissioner made under section 31 of the Act.

S.K.KAPUR, J.

1. By order dated 25th January, 1963, the Income-tax Appellate Tribunal referred the following two questions to this court under section 66(1) of the Indian Income-tax Act, 1922 :

"(1) Whether, in the particular facts of the case, an appeal lay of the Appellate assistant Commissioner ? and

(2) If the answer to the first question is in the affirmative, whether a further appeal lay to the Appellate Tribunal in the circumstances of the case ?"

2. The relevant assessment year is 1948-49. Gopi Lal (hereafter referred to as the assessee) was a partner of a firm known as Messrs. Behari Lal Ghasi Ram, Delhi. The said firm went to the Income-tax Appellate Tribunal in appeal, being Appeal No. 321 of 1956-57, and the question therein was whether a sum of Rs. 24,500 should be taxed in the hands of the firms of Gopi Lal, who was present at the time of the hearing of the appeal before the income-tax Appellate Tribunal, expressly stated that the said sum of Rs. 24,500 be included in his income and treated his exclusive share. Inter alia, in pursuance of the said statement by Gopi Lal the Tribunal directed that "Gopi Lal share of the profits in the firm be modified so as to include this sum of Rs. 24,500 in his hands alone. The share income of the other partners will so be accordingly modified and, as a result of this, necessary modification will be made in the personable assessments of the partners." Consequent upon the order of the Tribunal, the Income-tax Officer reallocated the profit of the firm in the hands if its partners including the assessee. The assessee objected to the said reallocation and appealed to the Appellate assistant Commissioner. The Appellate assistant Commissioner rejected the appeal on the ground that the case was not competent. Aggrieved by the order of the Appellate assistant Commissioner the assessee filed an appeal before the Income-tax Appellate Tribunal, which decided that no appeal was competent against the order of reallocation before the Appellate assistant commissioner and, consequently, the appeal did not lie to the Tribunals well. In these circumstances, the aforesaid two questions have been referred to us.

3. It appears that the direction to excluded Rs. 24,500 from the income of the firm was made under section 33(4) while the direction to reallocate the profits in the hands of the partners was made under section 33(5) of the Indian Income-tax Act, 1922. Mr. Whig, the learned counsel for the assessee, has frankly pointed out that he has so grievance against the exclusion of Rs. 24,500 from the income of the firm and its inclusion in the assessees hands as his exclusive income. His grievances, however, is against the reallocation made in the hands of the partners, including the assessee, in pursuance of the directions of the Income-tax Appellate Tribunal. The order of the Income-tax Officer making the reallocation has not been included in the record and Mr. Hardy could not find out any express order to that effect even in the original record. Whether or not an appeal under section 30 would be complement depends on the terms of the said provisions as an appeal is always a creation of the statute. It is not disputed that it is case where the partner of the firm we individually assessable on their shares in the total income of the firm. Mr. Whig says that :

"(1) the order of reallocation an order made under section 23 of the said Act and the assessees objection is, consequently, an objection to the amount of income assessed under section 23 within the meaning of section 30;

(2) in any case, it is case of an assessee denying his liabilities to be assessed under this Act, which term is wide enough to included denying the liability totally or partially; and

(3) every partner is, under the second proviso to section 30, entitled to appeal against the order of apportionment between the partners."

4. The power of the Income-tax Officer to make assessment area derived from section 23. Whenever t