9911796707
TMI Blog1964 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... computing the income-tax payable by him. An assessment order on this basis was made by the Income-tax Officer on September 26, 1959. The petitioner preferred an appeal to the Appellate Assistant Commissioner of Income-tax, Guntur. That appeal was duty heard and dismissed on merits on January 13, 1960, and a copy of the order was communicated to the petitioner on January 21, 1960. The petitioner preferred an appeal to the Income-tax Appellate Tribunal, Hyderabad, in April, 1960. This appeal was admitted, and after giving both parties an opportunity of being heard, the Tribunal dismissed it in December, 1960, on the ground that it was time-barred. Thereafter, on January 19, 1961, the petitioner preferred a revision to the respondent-Commissioner of Income-tax against the order of the Appellate Assistant Commissioner, Guntur. The respondent by his order dated February 24, 1961, rejected the revision as incompetent, in view of clause (c) of the first proviso to subsection (2) of section 33A of the Income-tax Act (XI of 1922) (hereinafter referred to as the Act). The case of the petitioner is that this provision of the Act has no application to his case, because the Income-tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 33A. (1) The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit: Provided that the Commissioner shall not revise any order under this sub-section if- (a)where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or (b)the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal, or (c)the order has been made more than one year previously. (2) The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order (or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal he preferred to the Tribunal was not an appeal in the contemplation of the Act or in the eye of law. This contention is rested solely on the circumstance that the Tribunal dismissed the appeal as out of time and did not go into the question of the correctness of the order passed by the Appellate Assistant Commissioner. As the Tribunal disposed of the matter on a point of limitation and not on merits, its order cannot be regarded as one passed on an appeal. The test to apply to determine whether there was an appeal in the eye of law or not is to see whether the order passed by the Tribunal was on merits or not. As the merits of the case cannot or will not be gone into in a time-barred appeal, it should be held that there was no effective appeal and therefore no appeal at all in the eye of law. This line of reasoning is an attempt to argue backwards from the result of the appeal. If the matter was disposed of by the Tribunal on merits, then an appeal must be held to have been preferred to the Tribunal; on the other hand, if the Tribunal disposed of it on a point of limitation, it must be held, according to the petitioner's contention, that there was no appeal at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it." The Judicial Committee in the above case was construing the word "appeal" in the third column of article 182 of the Limitation Act. But the principle enunciated by them applies equally to the instant case. In Nagendranath Dey's case (supra), the main facts were that an appeal, which was irregular in form and insufficiently stamped, was admitted and heard by the High Court in due course. At the hearing of the appeal, an objection was taken that it was not maintainable, because it was irregular and insufficiently stamped. The appellant thereupon prayed for leave to amend the appeal, but that was refused. The appeal was thereafter heard and dismissed both on the ground of incompetency and on merits and the dismissal was embodied in a decree of the High Court. The observations extracted above were made by the Privy Council regarding the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it was, an appeal would lie to the Tribunal under section 33 of the Act. If it was not, there was no right of appeal. In this context, the Supreme Court pointed out that "contentions relating to preliminary issue (like limitation) are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessment only." Their Lordships accordingly held that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed under section 31 and would be open to appeal. They proceeded further to say that it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted. The Bombay High Court in Champalal Asharam v. Commissioner of Income-tax [1953] 23 ITR 464 and the Allahabad High Court in Mohd. Nairn Mohd. Alam v. Commissioner of Income-tax [1951] 23 ITR 464 have held that an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred after it was admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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