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TMI Blog1951 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the assessee himself but on a third party and consequently time should not run from the date of service of the notice of demand but from the time the copies of the assessment orders were supplied to the assessee. In other words, according to the assessee the appeals were in time. This contention was not accepted by the Appellate Assistant Commissioner for the reasons given by him. A copy of the Appellate Assistant Commissioner's order is annexure A and forms part of the case. The Appellate Assistant Commissioner refused also to condone the delay in filing the appeals. He refused to entertain the appeals. Against the orders of the Appellate Assistant Commissioner refusing to entertain the appeals, three appeals were preferred before the Appellate Tribunal. A preliminary objection was raised by the Departmental Representative to the effect that the appeals were incompetent. On the other hand, it was argued that if the evidence had been properly appreciated by the Appellate Assistant Commissioner, he would have found that the appeals filed before him were not barred by time. The Tribunal did not examine whether as a matter of fact the appeals before the Appellate Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and provides that the Appellate Assistant Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing. Sub-section (3) provides that in disposing of an appeal the Appellate Assistant Commissioner may, in case of an order of assessment, confirm, reduce, enhance or annual an assessment. Now the contention of the Commissioner is that the order passed by the Appellate Assistant Commissioner was that the appeal against the orders of assessment was not entertained and dismissed. Therefore according to the Commissioner there was no decision on merits. The order did not either confirm, reduce, enhance or annual the assessment and the appeal was dismissed on the preliminary ground that the appeal was time-barred and could not be entertained by the Appellate Assistant Commissioner. Under the circumstances a contention is put forward that the order made by the Appellate Assistant Commissioner is not an order under Section 31. Now Section 33 gives a right of appeal to the Tribunal against an order of the Appellate Assistant Commissioner under either Section 28 or Section 31. Now looking at the scheme of Sections 30 and 31 it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner takes the view that the appeal is barred by limitation his view should be final and should not be challenged before the Tribunal. The Appellate Assistant Commissioner may take the view that the appeal is barred by limitation on various grounds; he may hold that the appeal is barred on appreciation of evidence as to facts, he may consider that the appeal is barred by limitation on an interpretation of the law, but in every case his decision is subject to a challenge before the Tribunal. This view is in conformity with our decision in Commissioner of Income-tax v. Mysore Iron and Steel Co. Ltd. [1949] 17 I.T.R. 478 That was a case where the Appellate Assistant Commissioner refused to condone the delay and declined to entertain the appeal and we held that the order was not under Section 31 of the Act but it was under Section 30(2) and therefore no appeal lay to the Tribunal. At page 480 of the Report in our judgment we pointed out that the scheme of Sections 30 and 31 was fairly clear. The assessee has a statutory right to present an appeal within 30 days without any order being required from the Appellate Assistant Commissioner for condonation of delay. But if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per case considered that where condonation of delay is refused on grounds which may be regarded as perverse it may have to consider whether the order was or was not under Section 31 and whether an appeal would not be competent to the Tribunal. In the same volume at page 660, Ramnarayana Das v. Commissioner of Income-tax, Bihar Orissa [1950] 18 I.T.R. 660, the Orissa High Court has taken the same view. In that case the Appellate Assistant Commissioner dismissed the assessee's appeal on the ground that it was incompetent as tax had not been paid as required by Section 30(1) and the Orissa High Court held that that order was under Section 31 and an appeal lay to the Tribunal. At page 667 the learned Chief Justice after setting out the provisions of Section 30(2) observed as follows:- This makes it clear that the stage of admission is interposed between presentation of an appeal and its hearing and disposal under Section 31 in cases in which the appeal is not presented within the prescribed time limit. The necessary inference, therefore, is that in all other cases the appeals, as soon as presented, must come up for decision under Section 31. Therefore, according to the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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