1954 (10) TMI 53 - HC - Income Tax

Summary

Issues Involved:
1. Whether the order of the Appellate Assistant Commissioner declining to admit the appeal was an order under Section 30(2) of the Income Tax Act and, as such, not appealable to the Tribunal.

Issue-wise Detailed Analysis:

1. Nature of the Order by the Appellate Assistant Commissioner:
The primary issue revolves around whether the order by the Appellate Assistant Commissioner, which declined to admit the appeal due to a technical defect (absence of a copy of the notice of demand), falls under Section 30(2) or Section 31 of the Income Tax Act. The appellant argued that the necessary document was filed with the appeal, but for the purpose of answering the legal question, it was assumed that the appeal was filed without the necessary document.

2. Section 30 vs. Section 31:
Section 30 deals with the presentation of appeals and includes provisions for condoning delays (Section 30(2)) and the prescribed form and verification of appeals (Section 30(3)). Section 31 deals with the hearing of appeals, where the Appellate Assistant Commissioner fixes a date and place for the hearing (Section 31(1)) and may adjourn the hearing from time to time.

3. Precedents and Judicial Interpretations:
The judgment discusses various precedents:
- In *Mohd. Naim Mohd. Alam v. Commissioner of Income Tax, U.P.*, it was held that an order dismissing an appeal after issuing a notice under Section 31(1) is an order under Section 31.
- In *Gyan Manjari Kuari v. Commr. of Income Tax, B and O.*, the dismissal of an appeal 'in limine' due to a defective form was considered an order under Section 31.
- The observations of Lord Romer in *Commr. of Income Tax, Bombay Presidency & Aden v. Khemchand Ramdas* supported the view that even if an appeal is rejected on the ground of incompetence, it is still an order under Section 31.
- In *Commr. of Income Tax v. Shahzadi Be-Gum*, it was held that dismissing an appeal as time-barred is an order under Section 31.
- In *K. K. Porbunderwalla v. Commr. of Income Tax Bombay City*, a distinction was made between refusing to condone the delay (Section 30(2)) and dismissing the appeal as time-barred (Section 31).
- *Champalal Asharam v. Commr. of Income Tax, Bombay, South* reiterated that once a notice under Section 31 is issued, any subsequent order is under Section 31.

4. Contradictory Views:
The judgment also acknowledges contrary views:
- In *Dewan Chand v. Commr. of Income-tax*, it was held that an order refusing to condone the delay and rejecting the appeal is under Section 30(2).
- The Supreme Court decision in *Commr. of Income Tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar* suggested that an order declining to admit an appeal due to jurisdictional error is not under Section 31.

5. Conclusion:
The judgment concludes that the weight of authority supports the view that an order dismissing an appeal, whether for being time-barred, incompetent, or defective in form, is an order under Section 31. Consequently, the order by the Appellate Assistant Commissioner should be deemed an order under Section 31 and is appealable to the Tribunal. The court allows the assessee's costs in the reference, with a counsel fee of Rs. 250.

Separate Judgment:
A.N. Bhandari, C.J., concurs with the judgment.