Summary
The appellant firm filed appeals against orders assessing it to income-tax and super-tax for the years 1945-1946 and 1946-1947 beyond the time prescribed by s. 30(2) of the Income-tax Act. The appeals were numbered, and notices were issued for their hearing under s. 31. At the hearing of the appeals before the Appellate Assistant Commissioner, the Department took the objection that the appeals were barred by time. The appellant prayed for condonation of delay, but that was refused, and the appeals were dismissed as time- barred. The appellant then preferred appeals against the orders of dismissal to the Tribunal under s. 33 of the Act, and the Tribunal dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under s. 30(2) and not under s. 31 of the Act and that no appeal lay against them under s. 33 of the Act.
On a reference under s. 66(1) of the Act the High Court held that the orders of the Appellate Assistant Commissioner were made under s. 30(2) and were not appealable under s. 33 of the Act.On appeal by special leave to the Supreme Court the question for determination was whether an order dismissing an appeal presented under s. 30 as out of time was one under s. 30(2) or under s. 31 of the Act because if it was the former there was no appeal provided against it; if it was the latter it was open to appeal under s. 33.Held that the orders of the Appellate Assistant Commissioner fell within s. 31.A right of appeal is a substantive right and is a creature of the statute. S. 30(1) confers on the assessee a right of appeal against certain orders and an order of assessment under s. 23 is one of them. The appellant had therefore a substantive right under s. 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer.167 An appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in appeal.Section 31 is the only provision relating to the hearing and disposal of appeals and if an order dismissing an appeal as barred by limitation as in the present case is one passed in appeal it must fall within s. 31 and as s. 33 confers a right of appeal against all orders passed under s. 31, it must also be appealable.To fall within s. 31 it is not necessary that the order should expressly address itself to and decide on the merits of the assessment and it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point.An order rejecting an appeal on the, ground of limitation after it had been admitted is one under s. 31, though there is no consideration of the merits of the assessment.Held therefore that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time- barred would be orders passed under s. 31 and would be open to appeal, and it would make no difference in the position whether the orders of dismissal were made before or after the appeals were admitted.Commissioner of Income-tax, Madras v. Mtt. `r. S. Ar.Arunachalam Chettiar, ([1953] S.C.R. 463), explained.Case-law discussed.See the full content of this document
Extract
Messrs Mela Ram & Sons VS. The Commissioner Of Income-tax,punjab.
PETITIONER: MESSRS MELA RAM & SONS Vs.RESPONDENT: THE COMMISSIONER OF INCOME-TAX,PUNJAB.DATE OF JUDGMENT: 21/02/1956BENCH: AIYYAR, T.L. VENKATARAMABENCH: AIYYAR, T.L. VENKATARAMADAS, SUDHI RANJANBHAGWATI, NATWARLAL H.CITATION: 1956 AIR 367 1956 SCR 166ACT: Indian Income Tax Act,1922 (XI of 1922),ss.23,30(1)(2),31, 33-Assessment of Income-tax-Notice of demand-Appeal against assessment-Received in Appellate Assistant Commissioner's Office out of time-Prayer for condonation of delay rejected- Order of Assistant Commissioner dismissing an appeal as out of time-Whether one under s. 30(2)or under s. 31 of the Act- Whether appeal competent therefrom.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 17 of 1954.Appeal by Special Leave from the Judgment and Order-dated the 11th day of June 1951 of the Punjab High Court in Civil Reference No. 2 of 1951.Hardyal Hardy and Sardar Singh, for the appellant.C. K. Daphtary, Solicitor-General of India (G. N.Joshi and R. H. Dhebar, with him) for the 'respondent.1956. February 21. The Judgment of the Court was delivered byVENKATARIAMA AYYAR J.--The appellant is a firm carrying on business at Ludhiana in the Punjab. The Income-tax Officer assessed its income for 1945-1946 at Rs. 71,186, and on 17-9-1947 a notice of demand -was served on it for Rs.29,857-6-0 on account of income-tax and super-tax. The appellant preferred an 168appeal against the assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5- 1...
See the full content of this document