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Issues: Whether an order can be said to have been made the subject of an appeal to the Appellate Tribunal within the meaning of the proviso to section 33A(2) of the Indian Income-tax Act, 1922 when the appeal was dismissed as time-barred.
Analysis: The expression "the order has been made the subject of an appeal to the Appellate Tribunal" was construed to mean that there must be an effective appeal on the merits. An appeal that is not admitted and is rejected solely because it is filed beyond time does not make the order the subject of an appeal. The earlier construction adopted by High Courts was followed, and it was noted that the relevant provision had remained unchanged notwithstanding subsequent amendments to the tax law, supporting acceptance of that interpretation.
Conclusion: The question was answered in the negative. The Commissioner's refusal to entertain the applications on the footing that the matter had been made the subject of an appeal to the Tribunal was erroneous, and the refusal to exercise jurisdiction was unjustified.
Final Conclusion: The petitions succeeded, the impugned order was set aside, and the Commissioner was required to consider the applications under section 33A(2) according to law.
Ratio Decidendi: For the purpose of the proviso to section 33A(2), an order is made the subject of an appeal only when there is an effective appeal capable of consideration on merits; a time-barred and rejected appeal does not attract the statutory bar.
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