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1954 (12) TMI 33 - HC - Income Tax

Issues Involved:
1. Whether the order passed by the Appellate Assistant Commissioner refusing to admit an appeal for being time-barred is under section 30(2) or section 31 of the Indian Income-tax Act.
2. Whether an appeal is competent to the Tribunal from such an order.
3. Whether the appeal to the Appellate Assistant Commissioner was filed within time.
4. Whether the Tribunal has the jurisdiction to consider the grounds for condonation of delay if the Appellate Assistant Commissioner refused to condone the delay.

Detailed Analysis:

Issue 1: Nature of the Order by the Appellate Assistant Commissioner
The primary question was whether the order passed by the Appellate Assistant Commissioner refusing to admit an appeal on the grounds of being time-barred falls under section 30(2) or section 31 of the Indian Income-tax Act. The court concluded that the order was under section 30(2). The reasoning was that section 30(2) allows the Appellate Assistant Commissioner to condone the delay if sufficient cause is shown. If the appeal is filed beyond the 30-day period and the Appellate Assistant Commissioner is not satisfied with the cause for delay, the appeal must be rejected under section 30(2). This interpretation was supported by previous cases such as Shivnath Prasad v. Commissioner of Income-tax and Municipal Board, Agra v. Commissioner of Income-tax.

Issue 2: Competency of Appeal to the Tribunal
The court held that no appeal lies to the Tribunal from an order of the Appellate Assistant Commissioner refusing to admit an appeal on the grounds of being time-barred. This decision was based on the interpretation that the order is under section 30(2) and not section 31. The court cited the Supreme Court decision in Commissioner of Income-tax v. AR. S. AR. Arunachalam Chettiar, which clarified that an order refusing to admit an appeal due to time-bar does not fall under section 31 and hence is not appealable to the Tribunal under section 33.

Issue 3: Timeliness of the Appeal Filed
The court examined whether the appeal to the Appellate Assistant Commissioner was filed within the permissible time frame. The relevant facts were that the assessee received the notice of demand on 11th May 1946 and applied for copies of the assessment order on 15th May 1946. The copies were sent by registered post on 19th July 1946 but were received by the assessee on 7th August 1946. The appeal was filed on 2nd September 1946. The Appellate Assistant Commissioner excluded the period up to 19th July 1946 but not up to 7th August 1946, thus concluding that the appeal was time-barred. The court upheld this view, agreeing that the time requisite for obtaining the copies should be excluded only up to the date the copies were sent, not received.

Issue 4: Tribunal's Jurisdiction on Condonation of Delay
The court addressed whether the Tribunal could consider the grounds for condonation of delay if the Appellate Assistant Commissioner refused to condone the delay. Given that the order refusing to admit the appeal was under section 30(2), the court held that the Tribunal did not have the jurisdiction to consider the sufficiency of the grounds for condonation of delay. This conclusion was also supported by the Supreme Court decision in Commissioner of Income-tax v. AR. S. AR. Arunachalam Chettiar, which stated that such an order is not appealable to the Tribunal under section 33.

Conclusion:
- The order by the Appellate Assistant Commissioner refusing to admit the appeal for being time-barred is under section 30(2) of the Indian Income-tax Act.
- No appeal lies to the Tribunal from such an order.
- The appeal was not filed within the permissible time frame as the time requisite for obtaining copies was correctly excluded only up to the date the copies were sent.
- The Tribunal does not have the jurisdiction to consider the grounds for condonation of delay if the Appellate Assistant Commissioner refused to condone the delay.

 

 

 

 

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