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TMI Blog1952 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner till the 30th May, 1949. Since under Section 34(2) the period of limitation for filing an appeal is "ordinarily" thirty days from the receipt of the notice of the demand, the Assistant Commissioner issued a notice to the assessee to show cause why the petition of appeal should not be rejected as time-barred. Cause was shown but as the Assistant Commissioner did not consider it satisfactory, he passed an order on the 27th June, 1949, concluding with the following words:- "The delay is therefore not condoned. The appeal petition was not entertained under Section 34(2). Inform appellant." I may interrupt myself for a moment to point out that in the Statement of the Case submitted by the Tribunal, the date of presentation of the appeal has been wrongly given as the 27th June, 1949. The order-sheet of the Assistant Commissioner which is set out at page 15 of the paper-book makes it perfectly clear that the appeal was filed on the 30th May. It is regrettable that such an inaccuracy should have occurred in the Statement of the Case, particularly when the question is one of limitation. To revert to the facts of the case, the assessee next preferred an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of that section provides that the Assistant Commissioner shall fix a day and place for the hearing of the appeal, while sub-section (2) empowers the Assistant Commissioner to make such further enquiry as he thinks fit before disposing of any appeal. The actual disposition of the appeal is dealt with by sub-section (4) of the section which, so far as material, is in the following words:- "(4) In disposing of an appeal, the Assistant Commissioner may- (a) in the case of an order of assessment-(i) confirm, reduce, enhance or annul the assessment." The rest of the sub-section is not material. A further appeal to the Appellate Tribunal is provided for by Section 36(1). That section is in the following terms:- "Any assessee objecting to an order passed by the Assistant Commissioner under Section 32 or Section 35 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him." It will be noticed that Section 36(1) does not mention any order made under Section 34(2). Section 32 which Section 36(1) mentions is not relevant for the present purpose. The only section which remains is Section 35 and if an asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained from the report. I may also add, with respect, that all the implications of the particular view taken do not seem to have received attention in all those cases. For that reason and also for the reason that there is no decision of this Court, I shall try to arrive at a conclusion of my own from an examination of the sections of the Bengal Act. I think it will make for clarity if I try to visualise at this stage all the different kinds of orders that can possibly be made when an Assistant Commissioner has before him a petition of appeal presented for the first time. The form for an appeal from an order of assessment in Form No. 12 which requires the appellant to state in an appropriate column the date on which he received the notice of demand. The date of the presentation of the appeal and the date of the receipt of the notice of demand by reference to which the question of limitation is to be judged will, therefore, be both before the Assistant Commissioner. In dealing with the petition of appeal the Assistant Commissioner, therefore,- (a) may wrongly think that it is barred by limitation and reject the petition; (b) may overlook the fact that it is barred by limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal on the ground of limitation cannot possibly be a matter within Section 35. On the other hand, cases which have held that an appeal would lie even from an order rejecting a petition of appeal after refusing to condone the delay, proceed on the view that a time-barred appeal is none the less an appeal because it is time-barred; or that an order rejecting the petition of appeal is virtually an order confirming the assessment and therefore an order under Section 31 of the Indian Act or 35 of the Bengal Act; or, again, that if the law is to be applied according to its letter, then no power would be found within the four corners of Section 30 of the Indian Act or Section 34 of the Bengal Act to reject a petition of appeal and, therefore, any order of rejection must be referred to Section 31 of the Indian Act or 35 of the Bengal Act. If I may say so, with respect, the reasons given in favour of the former of these views appear to me to be open to objection and those in favour of the latter do not go far enough to reach the real point. The true position appears to me to be that when an Assistant Commissioner has before him a petition of appeal, he has to make an order in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that an appeal would lie from that part of the order which deals with the question of limitation, but none would lie from the other part which deals with the question of extension of time. So to hold seems to me to amount to holding that whereas an appeal would lie from the final order rejecting the petition of appeal, the incorrectness of the finding of the Assistant Commissioner that the appeal is barred can be urged as a ground but the incorrectness of his finding that the time ought not to be extended cannot be so urged. The effect of the distinction made, therefore, seems to me to be not that an appeal would lie in one case and would not lie in the other, but rather that, in the appeal, one of the grounds of the decision of the Assistant Commissioner can be challenged, whereas the other cannot be. As I have said before, I cannot see any reason for making a distinction of that kind. In my view, it is the ultimate order which must be considered in deciding whether an appeal would lie or not and not the grounds of that order. In other words, where the petition of appeal has been rejected the matter for consideration is whether from an order rejecting the petition of appeal wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be appealable, so far as it is a decision on the question of limitation, does not seem to me to be consistent with the reasons given for holding that the further part of the order refusing to condone the delay would not be appealable. The Allahabad view that no part of such an order is appealable is at least more consistant. I concede that there is some artificiality in holding that an order rejecting a petition of appeal is virtually an order confirming the assessment and will be appealable on that basis. So far at least as this High Court is concerned, it has been held that an order rejecting a memorandum of appeal on the ground that it is barred by limitation is not a decree and, therefore, not appealable. Still, however, the consequence of taking a similar view in cases under the Income-tax Acts would be that even if the Assistant Commissioner were to be perverse or wrong- headed or ignorant enough to think a petition of appeal, obviously in time, to be time-barred, the assessee would have no remedy whatsoever. Under the Income-tax Acts, we are not troubled or embarrassed by the definition of a "decree". As the language of Section 35 does not altogether exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular section are appealable. Consequently, even if the position be that the Department is not entitled to appeal from an order condoning the delay and admitting the petition of appeal, that would not he a sufficient ground for holding that the assessee also would have no right of appeal from an Order rejecting his petition of appeal upon declining to condone the delay. Reverting to the question of limitation, it is by no means clear what Section 34(2) really means. I have already set out the terms of the section and the phraseology in which the section is expressed is curious in the extreme. It speaks of a period within which an appeal" should "ordinarily" be presented and then in gives power to the Assistant Commissioner to extend the time if he considers that there was sufficient cause for the delay. In one sense, it seems to be a combination of a provision of the nature of an Article in the Limitation Act and Section 5 of that Act. In another sense, it seems to imply that the period of thirty days is not really a fixed period of limitation: the period of limitation is thirty days or such further period as the Assistant Commissioner may allow, If so, a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be in the affirmative. In view of the difficulty of the point and the view that has been generally taken under the Indian Income-tax Act, I think the proper order for costs to make is that each party will bear its own costs. BACHAWAT, J.--The answer to the question referred depends upon the true construction of Sections 34, 35 and 36 of the Bengal Agricultural Income-tax Act. Sub-section (1) of Section 34 of the Bengal Act gives to the assessee a right of appeal to the Assistant Commissioner from certain orders and acts of the Income-tax Officer. Under sub-section (2) of that section the appeal must be presented within 30 days of the service of the relevant notice or intimation, but it may be admitted after that period if the Assistant Commissioner is satisfied that there is sufficient cause for not presenting the appeal within that period. Sub- section (3) of that section provides that the appeal shall be in prescribed form and verified in prescribed manner. Under sub-section (1) of Section 35 of the Bengal Act the Assistant Commissioner shall fix a day and place for the hearing of the appeal. Sub-sections (2) and (3) of that section give him the power of further enquiry and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable and practical construction so as to make that machinery effective. The Assistant Commissioner has to see whether the provisions of sub-sections (2) and (3) of Section 34 of the Bengal Act corresponding to sub-sections (2) and (3) of Section 30 of the Indian Act have been complied with by the appellant. He has to see that as provided for by sub-section (2) the appeal is in a prescribed form and is properly verified. He has also to see that the appeal has been presented in proper time in accordance with sub-section (3) which provides that " the appeal shall ordinarily be presented within 30 days" of the relevant starting point.......................... "but the Assistant Commissioner may admit the appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period." It is to be observed that the sub-section does not, in terms, prescribe a cut and dried period of limitation for presenting the appeal. The appeal has to be presented within a certain period of time or in an extraordinary case within such further time as the Assistant Commissioner may allow. The Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax, U.P. [1950] 18 I.T.R. 204, Municipal Board, Agra v. Commissioner of Income-tax, U.P. [1951] 19 I.T.R. 63, and by the Bombay High Court in Commissioner of Income-tax v. Mysore Iron and Steel Works [1949] 17 I.T.R. 478 and K.K. Porbunderwalla v. Commissioner of Income-tax, Bombay City [1952] 21 I.T.R. 63. With great respect I am unable to agree with these decisions. Several contentions have been advanced in these decisions in support of the conclusion arrived at. These contentions and their refutations are shortly summarised as follows:- (1) It is said that the Assistant Commissioner exercise his powers under Section 31 of the Indian Act only after the appeal is admitted and a date and place is fixed for the hearing of the appeal. It is true that notice of the hearing of the preliminary point with regard to the admission of the appeal is not usually given to the respondent but in my view the Assistant Commissioner is bound to fix a day and place for the hearing of the appeal on the preliminary point so far as the appellant is concerned and the preliminary point must be decided in his presence and after hearing him: In re Bhagwati Prasad [1932] I.L.R. 54 All. 494. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (Allahabad), and Ramanarayan v. Income-tax Commissioner [1950] 18 I.T.R. 660 (Orissa) that an order of dismissal of the appeal by the Assistant Commissioner at the final hearing on the ground that the appeal does not comply with the provisions of Section 30 and therefore incompetent is an order under Section 31. In my view these decisions are clearly right though I do not agree with some of their reasonings. Section 31 relates to all appeals whether competent or incompetent. The Assistant Commissioner has to find out whether the appeal is competent or incompetent having regard to the provisions of Section 30 and to dispose of the appeal on the basis of that finding. Section 30 provides the grounds for finding that the appeal is incompetent but the power to determine that such grounds exist and that the appeal is incompetent and to dispose of the incompetent appeal on the basis of such determination is given by Section 31. The question whether an appeal lies from an order admitting an appeal after condonation of the delay does not strictly arise in this case but it should be borne in mind that the question of the condonation of the delay and admission of the appeal is usually con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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