9911796707
TMI Blog1981 (3) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... in these two cases. In all these cases against the original order of assessment, appeals were preferred by the assessees to the Appellate Assistant Commissioner belatedly with petitions to excuse the delay in filing. On the ground that the assessees had not shown or proved sufficient cause for not presenting the appeals within the prescribed period, the Appellate Assistant Commissioner dismissed the petitions for excusing the delay. The assessees preferred further appeals purporting to be under section 36 of the Tamil Nadu General Sales Tax Act to the Tribunal. The State representative who had appeared before the Tribunal questioned the maintainability of the appeal against the order rejecting the petition for excusing the delay. The Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority under section 12, may within a period of thirty days from the date on which the order was served on him, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction). There are two provisos which read as follows: "Provided that the Appellate Assistant Commissioner may admit an appeal presented after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period; Provided further that in the case of an order under section 12, section 14, section 15, or sub-sections (1) and (2) of section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the comparable provisions in the Indian Income-tax Act, 1922, the Supreme Court had considered an identical question in Mela Ram and Sons v. Commissioner of Income-tax [1956] 29 ITR 607 (SC). Under section 30(1) of the Income-tax Act an assessee is given a right of appeal to the Appellate Assistant Commissioner against an order of assessment. Sub-section (2) of that section provided that the appeal shall ordinarily be presented within thirty days of receipt of the notice of demand relating to the assessment, but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Section 33 dealt with the appeals a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when a power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant and if he has a discretion to excuse the delay, he has also a discretion in appropriate cases to decline to do so. The Supreme Court then observed: "We are therefore of opinion that the refusal to excuse delay is an order under section 30(2) (of the Income-tax Act)." We are unable to read this sentence quoted in the sense that an order refusing to condone the delay in filing the appeal is an order under section 30(2) and not one under section 31 because in the latter portion of the judgment, the Supreme Court had held that it will be one of the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is liable to be dismissed in limine. There might be a provision in statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here. On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30(2), the legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law." After noting a certain decision, the Supreme Court further observed, "........................it must be held that an appeal presented out of time is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r annul the assessment or the penalty or both or set aside the assessment and direct the assessing authority to make a fresh assessment after such enquiry as may be directed which would cover almost all conceivable types of orders in appeals, further provided that he may "pass such other orders as he may think fit". A similar residuary power though not found in section 31 of the Income-tax Act, the Supreme Court considered and held that even orders which have no bearing on the merits of the assessment would come within the provisions of section 31(3) of the Income-tax Act. The provisions in section 31(3) of the Tamil Nadu General Sales Tax Act, which confer also a residuary power should therefore be considered as a fortiori case. We are the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
