JUDGMENT

1. This is a civil reference under Section 66 (1) of the Income-tax Act. Following is the question referred :-

"Whether in the facts and circumstances of the case the appeal is barred by limitation ?"

2. The facts are that the assessee, Messrs. Dhanpatmal Diwanchand of Lyallpur, had filed an appeal to the Appellate Assistant Commissioner against an order of assessment by the Income-tax Officer. On the 28th of June, 1946, the Appellate Assistant Commissioner disposed of some of the objections contained in the appeal of the assessee and directed the Income-tax Officer to furnish a particular report for the purpose of assisting in the final disposal of the appeal. Against this order of the Appellate Assistant Commissioner the assessee filed an appeal on the 24th of December, 1946. It is admitted that counting the days which the assessee was entitled to exclude the appeal ought to have been filed on the 19th of December, 1946. Apparently the appeal would be time-barred. The argument put forward on behalf of the assessee is as follows. The argument put forward on behalf of the assessee is as follow. There was a subsequent order by the Appellate Assistant commissioner on the 31st of March, 1947, by which he disposed of the appeal of the assessee. It is contended that really the appeal which was filed against the order of the 28th of June, 1946, was premature and misconceived and that the right of the assessee to file an appeal only arose when the order dated 31st of March, 1947, was passed. We agree with the Income-tax Appellate Tribunal that the argument is irrelevant to the question of limitation for the appeal against the first order. Whether an appeal lay against the first order or not, the fact remains that the appeal which has been filed was in fact against the first order and if we were to decide whether that appeal was in time or not we have only to consider the date of the first order. If the assessee was of the opinion that it is only the second order that gave him a right of appeal he was at liberty to file a fresh appeal against the second order. In any case, the passing of the second order does not validate an appeal which when presented was altogether time-barred. We answer the question referred to us in the affirmative.

Reference answered in the affirmative.