AI Drafter 
TaxTMI 
TaxTMI 
1954 (12) TMI 33
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....e 19th of September, 1950, the Appellate Tribunal was directed to refer certain other questions, and as a result of that order a fresh reference was made and besides the questions mentioned above three other questions were framed which were as follows:- "2. Whether an appeal to the Appellate Assistant Commissioner was or was not filed within time, i.e., whether the assessee was entitled to a deduction of the whole period between 15th May, 1946, to 7th August, 1946, or only the period between 16th May, 1946, and 19th July, 1946? 3. Whether an appeal lies to the Tribunal in a case where the appeal to the Appellate Assistant Commissioner was really not barred by limitation but was within time and the Appellate Assistant Commissioner has refused to admit it? 4. Whether the Tribunal was entitled to consider whether the grounds for condonation of the delay were Or were not sufficient where the Appellate Assistant Commissioner had refused to condone the delay?" The assessee is Mahabir Prasad Niranjanlal of Banaras, the assessment year being 1945-46. On the 30th of April, 1946, the Income-....
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....ppeal lay to the Tribunal under section 33 of the Act and there could be no reference to this Court under section 66. The first point to which our attention has been drawn is the use of the word "ordinarily" in section 30, sub-section (2), and it has been urged that an Appellate Assistant Commissioner can accept the appeal even if it is filed beyond 30 days if the delay is only of a few days. We do not think that the word "ordinarily" affects the period of 30 days. That word has probably been used as the Appellate Assistant Commissioner has the right to admit an appeal filed after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within time. The other argument of learned counsel was that whenever a memorandum of appeal is presented to the Appellate Assistant Commissioner, whatever the defect in it may be, whether beyond time or within time, whether it is in the prescribed form and is verified in the prescribed manner or not, it is an appeal which has to be disposed of by an order made under section 31 (3) of the Indian Income-tax Act. Learned counsel, however, in view of certain decisions of the Supreme Court, modif....
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....llowed by a Bench of this Court in Municipal Board, Agra v. Commissioner of Income-tax, United Provinces [1951] 19 ITR 63. In Mohammad Nairn Mohammad Alam v. Commissioner of Income-tax [1951] 19 ITR 58, the Appellate Assistant Commissioner had passed an ex parte order admitting the appeal and condoning the delay under section 30, sub-section (2), but later, after having heard the other-side, he decided against the assessee and dismissed the appeal on the ground that it was time-barred. It was held by a Bench of this Court that this was an order under section 31. In Special Manager, Court of Wards, Narain-das Narasinghdas v. Commissioner of Income-tax [1950] 18 ITR 204, it was held that an order by an Appellate Assistant Commissioner refusing to condone the delay in the filing of an appeal was an order under section 30(2), but that if, the appeal was in fact within time, it might be possible to urge that it was an order under section 31, but the point was not decided. In K.K. Porbunderwatta v. Commissioner of Income-tax [1952] 21 ITR 63, an Appellate Assistant Commissioner had passed an order holding that an appeal was time-barred and refusing to condone the delay. The Court held th....
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....t, therefore, be an order under section 30, sub-section (2). When a memorandum of appeal is presented to an Appellate Assistant Commissioner within the period fixed under the Income-tax Act, section 30 does not lay down how it is to be dealt with. Under section 31(1) a date and the place for hearing has then to be fixed. If, however, the Appellate Assistant Commissioner instead of fixing a date and place for the hearing of the appeal rejects the appeal under the mistaken impression that it is time-barred and there is no sufficient cause for condonation of the delay, the question will arise whether the order passed by him can be deemed to be an order-under section 31. In view, however, of the latest decision of the Supreme Court in Commissioner of Income-tax v. AR. S. AR. Arunachalam Chettiar [1953] 23 ITR 180; this question can no longer be said to be an open question. In that case the Income-tax Officer made an assessment order on the 23rd of January, 1942. There was an appeal to the Appellate Assistant Commissioner who reduced the assessment by an order dated the 25th of May, 1942. There was a further appeal to the Appellate Tribunal which gave certain directions and allowe....
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.... purview of "section 28 or section 31, no appeal lay therefrom to the Appellate Tribunal under section 33 (1) and if no such appeal properly came before the Appellate Tribunal it could not properly make an order under section 33(4) and if there was no order under section 33(4) there could be no reference under section 66, sub-section (1) or sub-section (2)." Learned counsel for the assessee has urged that the view expressed by the Supreme Court in the alternative is obiter and on the facts of the case the question did not arise as the assessee had not gone up in appeal to the Tribunal against the order of the Appellate Assistant Commissioner dated 19th November, 1945, declining to admit the appeal but had moved the Tribunal by an application to correct the mistake made by the Income-tax Officer in his order dated 26th September, 1945. Article 141 of the Constitution, however, provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. We must, therefore, consider ourselves bound by the law declared by the Supreme Court even though it was an alternative view taken by their Lordships. In the case before us the Appellate Assi....