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TMI Blog1964 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by the Income-tax Officer. The assessee filed an appeal from the assessment order passed against him under section 23 and the Appellate Assistant Commissioner set aside the assessment order and directed the Income-tax Officer to give a finding on the question whether the provision of section 25(3) was attracted by the facts of the case. It is to be noted that Appellate Assistant Commissioner who set aside the order did not direct the Income-tax Officer to make a fresh assessment after further inquiry and simply called for a finding on the question about the applicability of section 25(3). The Income-tax Officer recorded the finding that there was no discontinuation of business within the meaning of section 25(3). The Appellate Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessees appeal as incompetent could be said to be an order under section 28 or under section 31. Section 28 has no applicability and it is not the assessees case also that the order passed by the Appellate Assistant Commissioner could be said to be one under section 28. Section 31 deals with orders that an Appellate Assistant Commissioner can pass on hearing an appeal which lies to him under section 30. An appeal lies to him under section 30 at the instance of an assessee objecting to the amount of income assessed under section 23 (an appeal lies to him from certain other orders also but it is not the assessees case that the last order of the Income-tax Officer was any of them). Section 30(2) lays down that the appeal would ordinarily be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) against an order of an Income-tax Officer, and that was dismissed by an Appellate Assistant Commissioner as incompetent. No appeal was filed against that order, but a miscellaneous application was filed by the assessee before the Appellate Tribunal and the Tribunal acting on that application set aside the finding of the Income-tax Officer and directed him to make a fresh computation. The Commissioner applied to the Tribunal for referring to the High Court the question of law about the validity of the order passed by it. The Tribunal referred the question, but the High Court declined to answer it on the ground that the order of the Tribunal out of which the question arose was not passed an appeal under section 33(1) and that, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the latter was not an order under section 31. The appeal that had been filed before the Appellate Assistant Commissioner was not an appeal from an order mentioned in section 30(1), and, therefore, as the Supreme Court said in Arunachalam Chettiars case ...... there was no proper appeal before the Appellate Assistant Commissioner such as is contemplated by section 30(1) and, therefore, the order made by the Appellate Assistant Commissioner cannot be regarded as an order made by him under section 31(3), for an order section 31(3) can only be made in disposing of an appeal properly filed under section 30...... Even if the Appellate Assistant Commissioner had wrongly said that no appeal lay to him it might conceivably be corrected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h not presented within time was nevertheless an appeal and the order dismissing it as time-barred was an order passed in appeal. In the instant case the question is not whether the appeal before the Appellate Assistant Commissioner was an appeal barred by time. The question is whether the challenge before the Appellate Assistant Commissioner directed against an order which is not an order mentioned in section 30(1) can be said to constitute an appeal at all. That being so, the instant case is governed by the law laid down in Arunachalam Chettiars case rather than by the law stated in Mela Rams case. An appeal that is time-barred is an appeal within the jurisdiction of the Appellate Assistant Commissioner; it is distinct from an appeal wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders mentioned as open to appeal in section 30(1) is not an appeal upon which an order can be passed under section 31(3). In the instant case the order against which an appeal was filed before the Appellate Assistant Commissioner not being one of the orders mentioned in section 30(1) there was no appeal at all. This is quite different from saying that an appeal has been filed before the Appellate Assistant Commissioner but is barred by time. For these reasons we do not think that Sri Jagdish Swarup can derive any support for his contention from the decision in Mela Rams case. Sri Jagdish Swarup contended that the interpretation we placed would leave an assessee without remedy against a wrong order by an Appellate Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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