9911796707
TMI Blog1963 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee was maintainable ? During the assessment proceedings pending before the Income-tax Officer a question arose about the nature of a deposit entry of ₹ 90,000 in favour of one of the partners of the assessee-firm in the accounts of the firm and the Income-tax Officer held that it was income from undisclosed sources and included it in the assessable income of the assessee. The assessee preferred an appeal to the Appellate Assistant Commissioner, who, after obtaining a report from the Income-tax Officer, after further enquiry, held that the amount of ₹ 90,000 was not income from undisclosed sources and excluded it from the assessable income. The Commissioner of Income-tax, U. P., directed the Income-tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not before us and we do not know what questions were sought by the assessee to be referred by the Tribunal to this court; all we know is that the application was made. While this application was pending, the Income-tax Officer submitted his report and the Tribunal took up the appeal for final orders on January 24, 1957. On that date it was contended on behalf of the assessee that the appeal was incompetent for the reasons given above. The Tribunal rejected this contention and held that the Income-tax Officer had jurisdiction to file the appeal at the instance of the Commissioner of Income-tax. It then went into the merits of the appeal and set aside the assessment order and directed the Income-tax Officer to make a fresh assessment. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 66(1) can be made only in respect of an order passed under section 33(4) and in respect of no other order of the Tribunal. We have no doubt that the order dated December 15, 1955, is not an order passed under section 33(4). Section 33 deals with appeals against order of the Appellate Assistant Commissioners. Under sub-section (1), an assessee aggrieved by an order passed by an Appellate Assistant Commissioner under certain sections has been given the right to appeal to the Tribunal within a certain time. By sub-section (2), the Commissioner of Income-tax has been give the right to direct the Income-tax Officer to appeal to the Tribunal if he is aggrieved by an order passed by the Appellate Assistant Commissioner under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier order passed on December 15, 1955, also could not be such an order because section 33(4) does not contemplate two orders to be passed by the Tribunal in one appeal. The order dated December 15, 1955, not having been made under section 33(4), no application for reference of any question of law arising out of it could be made under section 66(1). The word used in section 33(4) and 33(6) is orders ; this does not mean that more than one order can be passed under section 33(4). The word orders is often used in the sense of order . Pass orders does not necessarily mean pass more than one order. We may refer to section 66(5) which uses the words shall pass such orders . In the context in which they are used they cannot mean more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal for further investigation to the Income-tax Officer under the provisions of section 33(4). It cannot be doubted that the Appellate Tribunal has a great measure of discretion granted to it under section 33(4) There are two kinds of remand orders that may be passed by an appellate authority : (1) keeping the appeal pending before it and remanding the case for further enquiry and a further finding on an issue, and (2) allowing the appeal, setting aside the order of the inferior court and directing it to pass a fresh order. We have not the slightest doubt that the second kind of remand order passed by the Tribunal is an order under section 33(4); it is the final order on the appeal and it is an order contemplated by section 33(4), even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetent; the statement of the case does not show that any such contention was raised before the Tribunal before that order was passed. It was raised for the first time after the reference application had been made. The Tribunal suo motu also did not deal with the question whether the appeal was competent or not. It did keep it pending and did call for a report from the Income-tax Officer but it did both these acts without finding that the appeal was competent. Therefore, it could not be said that the question about the competency of the appeal arose out of the order dated December 15, 1955. The Tribunal had no jurisdiction to refer to this court any question that did not arise out of the order passed by it on December 15, 1955, even if it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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