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Mahabir Prasad Niranjan Lal v. Commissioner Of Income-Tax
Structured Summary of the Legal Opinion — Malik, C.J.
Factual and Procedural Background
The opinion arises from a reference under Sec. 66(1) of the Indian Income-Tax Act. The assessee is Mahafoir Prasad Niranjan Lal of Banaras for the assessment year 1945–1946. The Income-tax Officer passed the assessment on 30 April 1946 and a notice of demand was served on 11 May 1946. The assessee applied for copies of the assessment order on 15 May 1946; the application was received by the Income-tax Officer at Kanpur on 16 May 1946. Copies were sent by registered post on 19 July 1946 but were received by the assessee only on 7 August 1946. The assessee filed an appeal before the Appellate Assistant Commissioner on 2 September 1946. The Appellate Assistant Commissioner refused to admit the appeal on the ground that it was barred by limitation under Sec. 30(2) (appeal ordinarily to be presented within thirty days of receipt of notice of demand). The Appellate Tribunal agreed with the Appellate Assistant Commissioner, holding that time could be excluded up to the date of posting (19 July 1946) but not to the date of receipt (7 August 1946), and also held that the order refusing to admit the appeal was an order under Sec. 30(2) and not appealable under Sec. 33. This Court was asked to determine the legal character of the Appellate Assistant Commissioner's order and related questions, and the Department was awarded costs of Rs. 500.
Legal Issues Presented
- (a) Whether an order passed by an Appellate Assistant Commissioner refusing to admit an appeal by holding that it was not presented within time is an order under Sec. 30, clause (2), of the Income-Tax Act or under Sec. 31 of the Act?
- (b) Whether an appeal is competent to the Tribunal from such order?
- 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 15 May 1946 to 7 August 1946 or only the period between 16 May 1946 and 19 July 1946?
- Whether an appeal lies to the Tribunal in a case where the appeal to Appellate Assistant Commissioner was really not barred by limitation but was within time and the Appellate Assistant Commissioner has refused to admit it?
- 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?
Arguments of the Parties
Appellant's (Assessee's) Arguments
- The assessee claimed that the period from 15 May 1946 to 7 August 1946 constituted the time requisite for obtaining copies of the assessment order and hence should be excluded under Sec. 67A.
- Counsel for the assessee contended that the use of the word "ordinarily" in Sec. 30(2) meant that an Appellate Assistant Commissioner could accept an appeal filed after thirty days where the delay was only a few days or for other equitable reasons.
- Counsel also argued (drawing on decisions from Calcutta and Madras High Courts) that whenever a memorandum of appeal is presented to the Appellate Assistant Commissioner, regardless of defects (including being beyond time), it remains an "appeal" and therefore must be disposed of under Sec. 31, provided three requirements were satisfied: (a) a date for hearing was fixed, (b) the appeal had been disposed of, and (c) the effect of the order was to confirm, reduce, enhance or annul the assessment.
- Reliance was placed on Privy Council and Supreme Court authorities (Ragendra Nath Dey; Raja Kulkarni) for the proposition that an irregular or incompetent application to a superior tribunal can nonetheless be an "appeal" within the meaning of the relevant provisions.
Appellate Assistant Commissioner / Revenue Position (as recorded)
- The Appellate Assistant Commissioner held that time up to 19 July 1946 (date of posting of copies) could be excluded but not up to 7 August 1946 (date of receipt), and therefore concluded the appeal was filed beyond the thirty-day period and there was no sufficient cause for condonation of the delay.
- The Appellate Tribunal agreed with that approach on exclusion of time and further held that the Appellate Assistant Commissioner's order refusing to admit the appeal was an order under Sec. 30(2) and not appealable under Sec. 33 of the Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gour Mohan Mullick v. Commissioner of Agricultural Income-tax, West Bengal (22 I.T.R 131) | Authority relied on by counsel to support that a defective memorandum of appeal is nevertheless an appeal. | Referred to as part of submissions; used to frame the argument that defective or irregular memoranda can still constitute an appeal. |
| Commissioner of Income-tax v. Shabzadi Begam (21 I.T.R 1) | Authority relied on by counsel for the proposition that defective memoranda can be appeals. | Referred to in support of counsel's argument; noted but not adopted as decisive against later Supreme Court authority. |
| Ragendra Nath Dey v. Suresh Chandra Dey (LIX I.A 283) | Privy Council authority supporting that an application to a superior court to set aside or revise can be an "appeal" even if irregular or incompetent. | Followed by Supreme Court and relied on by counsel; cited as part of the doctrinal background for the "irregular appeal still an appeal" position. |
| Raja Kulkarni v. The State of Bombay (1954 S.C.A p. 973) | Supreme Court decision adopting the Privy Council view that irregular applications to set aside or revise are "appeals" within meaning of provisions. | Noted as authority that supports counsel's broader submission regarding irregular appeals; referenced in the discussion. |
| Shivnath Prasad v. Commissioner of Income-tax, C. & U.P. (3 I.T.R 200) | Held that an Appellate Assistant Commissioner's order refusing to admit an appeal (because filed late) was not an order under Sec. 31. | This Court had earlier held the same view; cited as precedent consistent with the ultimate conclusion in the present case. |
| The Municipal Board, Agra v. Commissioner of Income-tax, U.P. (19 I.T.R 63) | Followed the view in Shivnath Prasad that refusal to admit late appeal is not an order under Sec. 31. | Noted as a following authority of this Court supporting that position. |
| Mohammad Naim Mohammad Alam v. Commissioner of Income-tax, U.P. (19 I.T.R 58) | Held that where the Appellate Assistant Commissioner admitted the appeal and later dismissed it as time-barred, that dismissal was an order under Sec. 31. | Distinguished: used to show that factual differences can lead to classification under Sec. 31 where an appeal had been admitted and later dismissed on merits. |
| Special Manager, Court of Wards Naraindas Narsinghdas v. Commissioner of Income-tax, U.P. (18 I.T.R 204) | Held that an order refusing to condone delay was an order under Sec. 30(2); suggested that if the appeal was in fact within time, it might be an order under Sec. 31. | Referred to in the discussion of borderline cases and the distinction between Sec. 30 and Sec. 31 orders. |
| K.K. Porbunderwalla v. Commissioner of Income-Tax, Bombay City (21 I.T.R 63) | Held that the part of an order rejecting an appeal as time-barred was an order under Sec. 31, but the part refusing to condone delay was under Sec. 30(2); observed that the Appellate Assistant Commissioner's view on limitation should be challengeable before the Tribunal. | Cited for the proposition that different aspects of a single order may fall under different sections; the Court referenced the observation about challengeability but applied later Supreme Court authority to resolve the present issues. |
| Sir Padampat Singhania v. Commissioner of Income-tax, U.P. and Ajmer-Marwara (24 I.T.R 141) | Followed the Privy Council and Lahore High Court view that where an order could have been passed under a particular provision, the court will treat it as an order under the section which really applies rather than the one mentioned in the order. | Referred to in support of construing the true character of orders by reference to the section which really applied. |
| Commissioner of Income-tax Bombay Presidency and Aden v. Khem Chand Ramdas (LXV I.A 236) | Privy Council authority relied on in Sir Padampat Singhania regarding construction of orders under the section that really applies. | Referred to as part of the doctrine adopted in Sir Padampat Singhania; used to explain approach to classification of orders. |
| Duni Chand v. Commissioner of Income-Tax (X Lah. 596) | Lahore High Court authority cited alongside Sir Padampat Singhania on construing orders under the applicable section. | Referenced as supporting precedent in the doctrinal discussion about treating orders as made under the appropriate statutory provision. |
| Commissioner of Income-tax, Madras v. Arunachalam Chattiar (23 I.T.R 180) | Supreme Court decision holding, inter alia, that where an Appellate Assistant Commissioner wrongly declines to admit an appeal, his order is not an order under Sec. 31 and therefore not appealable to the Tribunal under Sec. 33; the Supreme Court's view was treated as binding under Article 141. | Decisive for the present case: this Court considered itself bound by that Supreme Court decision and held that the Appellate Assistant Commissioner's refusal to admit the appeal was an order under Sec. 30(1) and not appealable to the Tribunal under Sec. 33. |
Court's Reasoning and Analysis
The Court proceeded through a sequence of interpretive and precedential steps to resolve the questions referred:
- Statutory interpretation — meaning of "ordinarily" in Sec. 30(2): The Court held that the word "ordinarily" does not shorten or affect the statutory thirty-day period; rather, it reflects that the Appellate Assistant Commissioner may, in his discretion, admit an appeal filed after the period if satisfied there is sufficient cause. The word does not alter the fixed period itself.
- Nature of orders under Sec. 30 and Sec. 31: The Court analysed the statutory scheme — Sec. 30(2) deals with appeals presented after the fixed period and only empowers the Appellate Assistant Commissioner to condone or refuse to condone delay and consequently to admit or refuse to admit the appeal. Sec. 31(1) governs the procedure when an appeal is presented within time and requires fixing a date and place for hearing. The Court emphasised that Sec. 30 does not provide for the passing of any order other than condonation/refusal and admission/refusal at the time of presentation when beyond time.
- Examination of defendants' (counsel's) argument that any memorandum presented is an "appeal" and must be disposed of under Sec. 31: The Court noted counsel's reliance on several High Court decisions but distinguished the present situation. The Court acknowledged authorities that a defective memorandum may still be an appeal in some contexts, but held that where an appeal is presented after the statutory period and is refused admission for want of sufficient cause, that refusal is an order under Sec. 30(2).
- Precedential analysis: The Court surveyed previous decisions of this Court and other courts, noting some divergence in particular factual situations (for example, where an appeal is initially admitted and later dismissed on the merits, such a dismissal may fall under Sec. 31). Key to the resolution, however, was the Supreme Court decision in Commissioner of Income-tax, Madras v. Arunachalam Chattiar, which held (in the alternative) that an Appellate Assistant Commissioner's declining to admit an appeal is not an order under Sec. 31 and hence not appealable to the Tribunal under Sec. 33.
- Binding precedent: The Court accepted that Article 141 renders the Supreme Court's declared law binding on all courts and therefore considered itself bound by the Arunachalam Chattiar decision, even where that decision was expressed as an alternative view.
- Application to facts: Applying the statutory analysis together with the binding Supreme Court authority, the Court concluded that the Appellate Assistant Commissioner's order refusing to admit the appeal (25 November 1946) on grounds of limitation and lack of sufficient cause was an order under Sec. 30(1) and not an order under Sec. 31. Consequently, no appeal lay to the Appellate Tribunal under Sec. 33 and the Tribunal could not entertain questions regarding condonation of delay in that context.
Holding and Implications
Holding: The Court held that the order of the Appellate Assistant Commissioner refusing to admit the appeal on the ground that it was not presented within time was an order under Sec. 30(1) of the Income-Tax Act and not an order under Sec. 31; accordingly no appeal lay to the Appellate Tribunal under Sec. 33 against such an order.
Implications:
- Direct effect on the parties: The Appellate Assistant Commissioner's refusal to admit the assessee's appeal stands as an order under Sec. 30(1); the Appellate Tribunal had no jurisdiction to entertain an appeal under Sec. 33 against that refusal or to consider whether the Appellate Assistant Commissioner should have condoned the delay.
- Precedential effect: The Court applied and followed the Supreme Court's decision in Commissioner of Income-tax, Madras v. Arunachalam Chattiar as binding law under Article 141. The opinion indicates that no new precedent was laid down beyond application of existing Supreme Court authority; the decision confirms the classification of such refusal orders as falling under Sec. 30 rather than Sec. 31.
- Costs: The Department was awarded costs of Rs. 500.
This summary is based exclusively on the content of the provided opinion and does not add or infer facts or holdings beyond what the opinion states.
Malik, C.J:— This is a reference under Sec. 66(1) of the Indian Income-Tax Act. The questions originally referred to this Court were as follows:—
“1. (a) Whether an order passed by an Appellate Assistant Commissioner refusing to admit an appeal by holding that it was not presented within time is an order under Sec. 30, clause (2), of the Income-Tax Act or under Sec. 31 of the Act?
(b) Whether an appeal is competent to the Tribunal from such order?”
2. An application was filed under Sec. 66(2) of the Indian Income-Tax Act stating that certain other questions of law arose out of the Appellate Order and praying that those questions should also be referred to this Court for decision. By an order of this Court dated the 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 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?”
3. The assessee is Mahafoir Prasad Niranjan Lal of Banaras, the assessment year being 1945–1946. On the 30th of April, 1946, the Income-tax Officer passed the assessment order and on the 11th of May, 1946, a notice of demand was served on the assessee. On the 15th of May, 1946, the assessee applied for copies of the assessment order. This application was received by the Income-tax Officer at Kanpur on the 16th of May, 1946. On the 19th of July, 1946, the Income-tax Officer sent the copies by registered post but they were not delivered to the assessee till the 7th of August, 1946. On the 2nd of September, 1946, the assessee filed an appeal before the Appellate Assistant Commissioner, but the Appellate Assistant Commissioner refused to admit the appeal on the ground that the appeal was barred by limitation. Under Sec. 30(2) of the Income-Tax Act an appeal has to be filed within thirty days. The relevant portion of the section reads:
“The appeal shall ordinarily be presented within thirty days of receipt of the notice of demand relating to the assessment……”
4. Under Sec. 67A the day on which the order complained of was made and the time requisite for obtaining a copy of such order has to be excluded.
5. On behalf of the assessee it was claimed before the Appellate Assistant Commissioner that the time between the 15th of May, 1946, and the 7th of August, 1946, was the time requisite for obtaining the copies. The Appellate Assistant Commissioner, however, held that time up to the 19th of July, 1946, could be excluded but not up to the 7th of August. He accordingly held that the appeal had been filed beyond time and there was no sufficient cause for condonation of the delay. Against that order an appeal was filed before the Appellate Tribunal. The Appellate Tribunal agreed with the Appellate Assistant Commissioner that time could be excluded only upto the 19th of July, 1946, the date on which the copy was issued to the assessee by post, and not up to the 7th of August, 1946, when the copy was received by him. The Appellate Tribunal also held that the order of the Appellate Commissioner refusing to admit the appeal for hearing was an order under Sec. 30, clause (2) and, as such, not appealable under Sec. 33 of the Act.
6. The question that arises for consideration is whether the order passed by the Appellate Assistant Commissioner on the 25th of November, 1946, refusing to admit the appeal was an order under Sec. 31. If it was not an order under Sec. 31, then no appeal lay to the Tribunal under Sec. 33 of the Act and there could be no reference to this Court under Sec. 66.
7. The first point to which our attention has been drawn is the use of the word ‘ordinarily’ in the Sec. 30, Sub-sec. (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. The 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.
8. 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 Sec. 31(3) of the Indian Income-tax Act. Learned counsel, however, in view of certain decisions of the Supreme Court, modified this statement which he had based on the decisions of the Calcutta and Madras High Courts in Gour Mohan Mullick v. Commissioner of Agricultural Income-tax, West Bengal 22 I.T.R 131. and Commissioner of Income-tax v. Shabzadi Begam 21 I.T.R 1. and urged before us that if the following three requirements are satisfied, the order must be an order under Sec. 31:—
(a) The Appellate Assistant Commissioner has fixed a date for the hearing of the appeal presented to him;
(b) the appeal has been disposed of; and,
(c) the effect of the order is to confirm, reduce, enhance or annul the assessment.
9. For the proposition that a defective memorandum of appeal is nevertheless an appeal, learned counsel has relied on a decision of the Privy Council in Ragendra Nath Dey v. Suresh Chandra Dey LIX I.A 283 at p. 287. which was followed by the Supreme Court in Raja Kulkarni v. The State of Bombay 1954 S.C.A p. 973 at p. 977.. In the latter case their Lordships of the Supreme Court held, following the Privy Council, that
“any application by a party to the Appellate count to set aside or revise a decree or order of a Court subordinate thereto is a ‘appeal’ within the meaning of the above provisions, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order.”
10. The argument was that as a defective memorandum of appeal or a memorandum of appeal presented beyond the period of limitation was still an appeal it could be disposed of only under Sec. 31; and even though an order rejecting a memorandum on the ground that it is defective or is barred by limitation may not strictly come within the ambit of any of the sub-sections of Sec. 31, in effect it amounts to an order confirming the assessment and is, therefore, an order under Sec. 31(3)(a).
11. The point arose for the first time in this court in Shivnath Prasad v. Commissioner of Income-tax, Central and United Provinces 3 I.T.R 200.. In that case the appeal had not been presented within time and the Appellate Assistant Commissioner not being satisfied that sufficient cause had been made out refused to admit the appeal. It was held that his order was not an order under Sec. 31. This view was followed by a Bench of this Court in The Municipal Board, Agra v. Commissioner of Income-tax, United Provinces 19 I.T.R 63.. In Mohammad Naim Mohammad Alam v. Commissioner of Income-tax, U.P 19 I.T.R 58. the Appellate Assistant Commissioner had passed an order admitting the appeal and condoning the delay under Sec. 30, sub-sec. (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 Sec. 31. In Special Manager, Court of Wards Naraindas Narsinghdas v. Commissioner of Income-tax, U.P 18 I.T.R 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 Sec. 30(2), but that if the appeal was in fact within time, it might be possible to urge that it was an order under Sec. 31, but the point was not decided. In K.K Porbunderwalla…Applicant; v. Commissioner Of Income-Tax, Bombay City….* 21 I.T.R 63. an Appellate Assistant Commissioner had passed an order holding that an peal was time barred and refusing to con done the delay. The Court held that order, so far as it rejected the appeal on the ground that it was barred by limitation, was an order under Sec. 31, but that so far as it refused to condone the delay was an order under Sec. 30(2). The learned Chief Justice observed:—
“that it was not the intention of the Legislature that in a case where the Appellate Assistant Commissioner takes the view that the appeal is barred by limitation, his view should be final and should not be challenged before the Tribunal. The Appellate Assistant Commissioner may take the view that the appeal is barred by limitation on various grounds; he may hold that the appeal is barred on appreciation of evidence as to facts, he may consider that the appeal is barred by limitation on an interpretation of the law, but in every case his decisions is subject to a challenge before the Tribunal.”
12. In Sir Padampat Singhania v. Commissioner of Income-tax, U.P and Ajmer-Marwara 24 I.T.R 141, at pp. 145 and 146. this Court followed the view of the Privy Council in Commissioner of Income-tax Bombay Presidency and Aden v. Khem Chand Ramdas LXV I.A 236. and of the Lahore High Court in Duni Chand v. Commissioner of Income-Tax X Lah. 596, at p. 601. that where an order could have been passed under a particular provision of law purporting to have been made under some other provision, the Court would consider it as an order under a section which really applied and not the section mentioned in the order.
13. When a memorandum of appeal is presented before an Appellate Assistant Commissioner after the expiration of the period fixed, Sec. 30(2) provides that he may admit the appeal if he is satisfied that the appellant had sufficient cause for not presenting it within time. If an appeal is presented after the expiration of the period fixed and the Appellate Assistant Commissioner is not satisfied that the Appellant had sufficient cause for not presenting it within that period, he is bound to reject the appeal. The only order that can, therefore, be passed under Sec. 30 is an order condoning or refusing to condone the delay where the appeal is time barred and the consequential order admitting or refusing to admit the appeal. Sec. 30 does not provide for the passing of any other order by an Appellate Assistant Commissioner. An order passed one way or the other at the time of the presentation of an appeal beyond time must, therefore, be an order under Sec. 30, sub-sec. (2).
14. When a memorandum of appeal is presented to an Appellate Assistant Commissioner within the period under the Income-tax Act, Sec. 30 does not lay down how it is to be dealt with. Under Sec. 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 Sec. 31.
15. In view, however, of the latest decision of the Supreme Court in Commissioner of Income-tax, Madras v. Arunachalam Chattiar 23 I.T.R 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 allowed the appeal in part by an order dated the 20th of August, 1943. On the 26th of September, 1945 the Income-tax Officer purported to follow the directions of the Appellate Tribunal and amended his previous assessment order. He, however, issued no fresh notice of demand under Sec. 29. The assessee filed an appeal before the Appellate Assistant Commissioner who rejected the appeal by an order dated the 19th of November, 1945, on the ground that no appeal lay to him. The assessee then made an application to the Appellate Tribunal which passed an order on the 20th of February, 1946, by which it amended the order of the Income-tax Officer dated the 26th of September, 1945. The question arose whether the order of the Appellate Tribunal dated the 20th February, 1946 could be said to be an order under Sec. 33 of the alternative Act so that a reference could be made to the High Court. The Supreme Court held that it was not such an order. The ground taken was firstly, that the order of the Income-tax Officer dated the 26th of September, 1945, was not an order under Sec. 23 and, therefore, no appeal lay to the Appellate Assistant Commissioner under Sec. 30 of the Act and there was in consequence no question of a further appeal to the Tribunal under Sec. 33 of the Act. In the alternative it was held that even if the Appellate Assistant Commissioner had wrongly declined to admit the appeal, his order was not an order under Sec. 31 and there could nor, therefore, be an appeal under sub-sec. (1) of Sec. 33 to the Tribunal, and a reference to the High Court under Sec. 66. Their Lordships said:—
“Even if the order dated 26th September, 1945, made by the Income-tax Officer after the matter came back to him to give effect to the decision of the Appellate Tribunal be regarded as am order made by him under Sec. 23 or Sec. 27 and as such appealable under Sec. 30(1) then the order made by the Appellate Assistant Commissioner on 19th November, 1945, declining to admit the appeal clearly amounted to a refusal on his part to exercise the jurisdiction vested in him by law. An order thus founded on an error as to his jurisdiction may conceivably certainly foe regarded as such an order as is contemplated by any of the sub-sections of Sec. 31. Such an order not coming within the purview of Sec. 28 or Sec. 31, no appeal lay therefrom to the Appellate Tribunal under Sec. 33(1) and if no such appeal properly came before the Appellate Tribunal it could not properly made an order under Sec. 33(4) and if there was no order under Sec. 33(4) there could be no reference under Sec. 66, sub-sec. (1) or sub-sec. (2).”
16. 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 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 birding 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.
17. In the case before us the Appellate Assistant Commissioner had held that the appeal was barred by limitation and sufficient cause had not been made out for condoning the delay. Whether his decision was right or wrong, in the view taken by their Lordships of the Supreme Court his order must be held to be an order under Sec. 30(1) and not an order under Sec. 31. Our answer, therefore, to the first question is (a) that the order by the Appellate Assistant Commissioner refusing to admit the appeal on the ground that it was not presented within time was an order under Sec. 30(1) of the Act, and (b) that since it was an order under Sec. 30(1), no appeal lay to the Appellate Tribunal against that order.
18. In view of the Supreme Court decision that whether the Appellate Assistant Commissioner is right or wrong in not admitting the appeal the order cannot be an order under Sec. 31 the second question does not arise and the answer to the third question must be in the negative. The answer to the fourth question must be that as no appeal lay to the Appellate Tribunal under Sec. 33, the Appellate Tribunal could not consider the question whether the Appellate Assistant Commissioner should not have condoned the delay.
19. The Department is entitled to its costs, which we assess at Rs. 500.
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