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Civil Miscellaneous Case No. 250 of 1949, decided on 4th February 1957.

Ss. 30(2) & 31‑Order of Appellate Assistant Commissioner refusing to admit appeal on the ground that it is time‑barred ‑ Whether appeal lies to Tribunal.

An appeal lies to the Tribunal‑ against an order of the Appellate Assistant Commissioner refusing to admit an appeal on the ground that it was barred by limitation.

Meld Ram & Sons v. Commissioner of Income‑tax, Punjab (1956) 291 T R 607 fol.

By this application the Commissioner of U. P. requires the Appellate Tribunal to refer to the High Court certain questions of law which are said to arise out of the Tribunal's order in I. T. A. No. 3696 of 1946‑47. Inasmuch as a question of law does arise out of the aforesaid order we hereby draw up a statement of the case and refer it to the High Court of Judicature at Allahabad under section 66(1) of the Indian Income‑tax Act. The parties were supplied with a copy of the draft statement of the case before the date of bearing. The department accepts the case. The assessee was absent on the date of hearing.

2. The assessee was assessed under section 23(3) of the Indian Income‑tax Act by the Income‑tax Officer, Moradabad, on 12th January 1946. A notice of demand was served on the assessee on 16th January 1946. The assessee applied for a copy of the assessment order on 8th February 1946. The copy was issued to him on 4th March 1946. The appeal against the assessment was filed before the Appellate Assistant Commissioner on 21st March 1946. The Appellate Assistant Commissioner found that the application was barred by 25 days. The Appellate Assistant Commissioner refused to admit the appeal inasmuch as it was barred by time. In other words, he refused to condone the delay. An appeal against the order of the Appellate Assistant Commissioner refusing to condone the delay and refusing to admit the appeal was filed before the Tribunal. The Department contended that no appeal lay against such an order of the Appellate Assistant Commissioner. The Tribunal having held in many other cases that an appeal does lie to it in such circumstances held that an appeal to the Tribunal against the order of the Appellate Assistant Commissioner lay. The Tribunal was of the opinion that the Appellate Assistant Commissioner should condone the delay. It, therefore, allowed the assessee's appeal and directed the Appellate Assistant Commissioner to hear the appeal on merits.

3. The question of law that arises out of the facts stated above is:

"Whether an appeal against the order of the Appellate Assistant Commissioner refusing to admit an appeal on the ground, that it is barred by time lies to the Tribunal."

4. It may be added that in . a recent judgment of .the Bombay High Court it has been held that no such appeal lies to Appellate Tribunal.

J. Sarup for the Commissioner.

BHARGAVA, J.‑In this reference the question referred for decision to this Court is as follows: Whether an appeal against an order of the Appellate Assistant Commissioner refusing to admit an appeal on the ground that it is barred by time lies to the Tribunal. In view of the decision of the Supreme Court in Mela Ram & Sons v. Commissioner of Income‑tax, Punjab ((1956) 29 1 T R 607), which fully covers this point, our answer to the question is in the affirmative. Since no one has appeared for the assessee, we make no order as to costs.

Reference answered in the affirmative.

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