1986 (9) TMI 29

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.... order amounted to one within the ambit of section 250 of the Act so as to be subjected to second appeal before the Tribunal under section 253 of the Act ? " Accordingly, the aforesaid question of law has been referred by the Tribunal for the opinion of this court. The gist of the relevant facts may be stated as follows: The assessee, Kalipada Ghose, was the proprietor of New Ganguram Sweets at Bhubaneswar. The assessment years involved are 1974-75 and 1975-76. The Income-tax Officer determined the total income of the assessee at Rs. 17,500 and Rs. 30,000, respectively, for these years. The assessee filed appeals on October 29, 1975. The Appellate Assistant Commissioner considering the Taxation Laws (Amendment) Act, 1975, under which ....

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....erence on the point noticed earlier. Section 253, inter alia, provides that any assessee aggrieved by an order passed by an Appellate Assistant Commissioner or, as the case may be, a Commissioner (Appeals) under sub-section (2) of section 131, section 154, section 250 or section 271, section 271A or section 272A may appeal to the Appellate Tribunal against such order. Section 249 deals with form of appeal and limitation. Sub-section (4) thereof provides that " No appeal under this Chapter shall be admitted unless at the time of filing of the appeal, (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee h....

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.... by the assessee, the appeal shall not be admitted. Under the proviso to the said sub-section, power to exempt the assessee from making the deposit is vested in the appellate authority. Therefore, the assessee could comply with the requirements of section 249(4) of the Act either by making the deposit in question or by obtaining an order of exemption. An order rejecting the appeal in limine for non-compliance with the provisions of section 249(4) for not depositing the requisite amount, disposes of the appeal presented before the appellate authority. Such an order, therefore, comes within the purview of section 250 of the Act and is appealable to the Tribunal under section 253 of the Act. If this interpretation is not accepted, it will lead....