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TMI Blog1943 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Appellate Tribunal could assume jurisdiction to consider it? (3) Whether the Appellate Tribunal could consider the merits of the order passed under Section 30 of the Income-tax Act? The facts of the case lie in a very narrow compass. For the accounting period 1937 and 1938 the assessee was assessed on the 1st of August 1940 for a sum of ₹ 65,300. The very short order of the Income-tax Officer states that the assessee was served with a notice under Sections 22(2) and 34 on the 24th January 1940, but she did not comply with the notice. Against this order the assessee preferred a memorandum of appeal on the 18th January 1941 to the Appellate Assistant Commissioner of Income-tax. But he refused to admit the appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal apparently were in sympathy with the assessee but found that they were unable to assume jurisdiction over this appeal for the simple reason that this order of the Appellate Assistant Commissioner complained against was not an order under Section 31 and observed that it was no doubt unfortunate that in respect of orders passed under Section 30 even though capricious the legislature had not provided any right of appeal to the higher authority. At page 11 they also made these observations: Without expressing any opinion regarding the finding of the Appellate Assistant Commissioner that the appeals were not in the proper form we should state that it may not be possible in certain cases for a person to file the notice of demand as it may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 31 that the assessee is entitled to call upon the Commissioner to state a case to the High Court-see Section 66, subsection (2)-and that only when there has been an order under section 31 has the High Court jurisdiction to call upon the Commissioner to state a case upon his refusal to do so. I cannot accept this argument in its entirety as I am not prepared to hold that under sub-section (3) of Section 66 the jurisdiction of the High Court is in any way limited; that is to say, if the High Court is of the opinion that a point of law arises, the High Court may call upon the Commissioner to state a case thereon.'' Kulwant Sahay, J., observed as follows at page 214: It has been contended on behalf of the Crown that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commisssioner passed an order which is at least in form an order under Section 31. In passing the order the Assistant Commissioner also purported to act as the ordinary appellate authority and as far as I am aware there is no section in the Income-tax Act except Section 31, under which the order could have been passed Under Section 31 the Assistant Commissioner has the power to allow the appeal as well as to reject it and the mere fact that he rejects it on the ground that in his opinion no appeal lies will be no ground for treating the order as one not passed under Section 31. Dhavle, J., also gave a concurrent view which I desire to quote from page 225: If the decision of the Assistant Commissioner be in favour of the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als against assessments while leaving it open to the assessee to obtain a reference to the High Court under sub-sections (2) and (3) of Section 66 on questions of law arising out of the order of the Assistant Commissioner rejecting an appeal on the ground that it is barred by the proviso to sub-section (1) of Section 30 Section 66 does not in terms require as a foundation an appellate order on the merits but only an order under Section 31. In the case of Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas [1938] 65 IA. 236, Lord Romer, who delivered the judgment of their Lordships, observed as follows: One of the questions of law arising out of the order of the Assistant Commissioner was whether the appeal to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed within which a notice demanding income-tax under Section 29, Income-tax Act, 1922, is to be issued, and the mere fact that the ordinary form prescribed for such a demand contemplates that it will be issued during the current year of assessment, is not tantamount to an enactment that it cannot be issued, afterwards. In that case a notice was issued 14 months after the expiration of the year of assessment. The Department under the circumstances of the present case could issue another notice under Section 29 if the Assistant Commissioner was insisting on observing the rules to the very letter. In Berry v. Farrow [1914] 1 KB. 632 , Bankes, J., held that the giving of a notice of assessment was not only made by express provision but was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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