9911796707
TMI Blog1963 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice issued by the Board of Revenue proposing to revise the assessment and to re-fix the turnover, the petitionersassessees objected on the ground that as an appeal had been filed before the Tribunal the Board was not competent to take proceedings under section 34. Other objections to the assessability of the turnovers in question were also advanced. The Board held that the assessees had not filed an appeal to the Tribunal and that therefore the Board was not prevented from taking action under section 34. It also revised the turnover as proposed. It is against these orders that the present appeal has been filed. Mr. Chandrasekhara Sastry, for the petitioners principally rested his arguments upon the scope of section 34. He did not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him. The Appellate Tribunal is competent to admit an appeal presented after the expiry of 60 days for sufficient cause being shown. The assessees in this case did not file an appeal within the period of 60 days from the date of communication of the appellate order of the Assistant Commissioner. Admittedly they filed the appeal before the Tribunal beyond the period of limitation of 60 days, and filed also a petition for the condonation of the delay in filing the appeal. On the date on which the petition was posted for hearing before the Tribunal, the petitioners-assessees did not appear and their request for adjournment prayed for by a letter was refused. Both the petition for the condonation of the delay in the filing of the appeal and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation it is none the less an appeal for all purposes of the Act. It is urged therefore that the mere filing of an appeal petition beyond the period of limitation would not amount to saying that the order of the lower authority had been "made the subject of an appeal" to the Appellate Tribunal. For the petitioners reliance has been placed upon a decision of the Supreme Court in Mela Ram and Sons v. Commissioner of Income-tax'. In that case, the question that arose was whether an order made by the Appellate Assistant Commissioner dismissing an application to condone the delay in presenting an appeal petition and rejecting the appeal as time-barred was an order made under section 31 of the Income-tax Act from which an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted the position that the refusal to excuse the delay is an order under section 30(2) of the Act. They proceeded to observe: "Now, a right of appeal is a substantive right, and is a creature of the statute. Section 30(1) confers on the assessee a right of appeal against certain orders ..... The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then, we come to section 30(2), which enacts a period of limitation within which this right is to be exercised. If an appeal is not presented within that time, does that cease to be an appeal as provided under section 30(1)? It is well established that rules of limitation pertain to the domain of adjectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board's jurisdiction to revise the order is wholly taken away when four years have passed after the date of the order sought to be revised. It is easy to see that if the mere filing of an appeal petition, even if it is out of time, is to prevent the exercise of the power by the Board of Revenue, an assessee to whom notice of revision has been issued can present a belated appeal petition to the Appellate Tribunal and keep the matter pending till the fouryear period expires and effectively put it out of the power of the Board of Revenue to revise the order, even though ultimately the appeal petition might itself be dismissed as incompetent. It would, therefore, be reasonable to hold, in order to secure a harmonious construction, that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken a different view. Nor does the decision of the Supreme Court cited appear to have any direct application in considering the expression "has been made the subject of an appeal". It has been held by this Court in T.C. No. 19 of 1962 that the time limit of four years prescribed in section 34(2)(c) for the exercise of the power of revision of the Board of Revenue is absolute and that unless a final order in revision is made by the Board within that period of four years, the Board loses the jurisdiction to make any order in revision. Conformably to that decision of ours, if section 34(2)(b) is to be construed as preventing the exercise of the power of revision by the Board even by the mere filing of an ineffective appeal far beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
