JUDGMENT

1. The Income-tax Appellate Tribunal, Lahore, has referred the following question of law to this Court :-

"Whether, in the circumstances of the case, the Tribunal rightly refused to entertain the additional grounds raised by the assessee in his application, dated the 24th May, 1947, when there was no appeal in the prescribed form, accompanied by the Tribunals fee, against the Appellate Assistant Commissioners later order, dated the 31st March, 1947".

2. The facts leading to the statement of the above question are succinctly stated in the statement of the case at page 3 of the paper book and may be conveniently reproduced here :

"Against the assessment proper for the charge year 1941-42 the assessee preferred an appeal to the Appellate Assistant Commissioner who decided certain issues finally by his order, dated the 28th June, 1946. As regards some other objections raised by the assessee, he called for a report from the Income-tax Officer. On receipt of the remand report, the Appellate Assistant Commissioner decided the remaining issues by his final order, dated the 31st March, 1947. In the meantime, however, the assessee preferred an appeal to the Tribunal against the Appellate Assistant Commissioners first order, dated the 28th June, 1946. This appeal was lodged on the 24th December, 1946, that is within 60 days of the service of the Appellate Assistant Commissioners order dated the 28th of June, 1946. No appeal was brought before the Tribunal against the later order of the Appellate Assistant Commissioner of 31st March, 1947. But later the assessee filed a petition containing additional grounds and asked the Tribunal to deal with these grounds on which some of the findings contained in the later order were contested. The Tribunal refused to deal with these additional grounds for the reason that evidently they did not arise out of the order, dated the 28th June, 1946, against which the appeal to the Tribunal was directed. The Bench remarked as follows :-

The procedure adopted by the assessee is misconceived.

Whether the later order is the final order in the appeal or is an order separate from the one which the Appellate Assistant Commissioner had already passed on the 28th of June, 1946, the assessee should have brought an appeal before the Tribunal against this order. Petition containing additional grounds cannot take the place of a regular appeal which is to be accompanied by the Tribunals fee of Rs. 100. That being so, we cannot entertain the additional grounds which do not arise out of the order, dated the 28th June, 1946, against which the present appeal is directed".

The first contention of the learned counsel for the assessee before us was that the appeal filed by his client against the Appellate Assistant Commissioners order of the 28th of June, 1946, should be treated as an appeal against the order of the 31st of March, 1947. We are unaware of any provision of law or process of reasoning by which an appeal filed against a previous order can be treated as an appeal against a subsequent order which was, at the time of filing of the appeal, still in the embryo. The only other point urged on behalf of the assessee was that the application dated the 24th of May, 1947, may be treated as an appeal against the second order of the 31st of March, 1947. Sub-section (3) of Section 33 of the Income-tax Act provides :-

"An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees."

The application of the 24th of May, 1947, is admittedly not in the prescribed form and suffers from the two defects mentioned in the question of law formulated by the Appellate Tribunal namely, that it was not in the prescribed form and was not accompanied by a fee of Rs. 100. Rule 13 of the Income-tax Appellate Tribunal Rules, 1946, is as follows :-

"The Tribunal may reject a memo