{"id":166507,"date":"1956-02-21T00:00:00","date_gmt":"1956-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/messrs-mela-ram-sons-vs-the-commissioner-of-on-21-february-1956"},"modified":"2019-03-09T06:37:09","modified_gmt":"2019-03-09T01:07:09","slug":"messrs-mela-ram-sons-vs-the-commissioner-of-on-21-february-1956","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/messrs-mela-ram-sons-vs-the-commissioner-of-on-21-february-1956","title":{"rendered":"Messrs Mela Ram & Sons vs The Commissioner Of … on 21 February, 1956"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Messrs Mela Ram & Sons vs The Commissioner Of … on 21 February, 1956<\/div>\n
Equivalent citations: 1956 AIR 367, \t\t 1956 SCR 166<\/div>\n
Author: T V Aiyyar<\/div>\n
Bench: Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nMESSRS MELA RAM & SONS\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME-TAX,PUNJAB.\n\nDATE OF JUDGMENT:\n21\/02\/1956\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nDAS, SUDHI RANJAN\nBHAGWATI, NATWARLAL H.\n\nCITATION:\n 1956 AIR  367\t\t  1956 SCR  166\n\n\nACT:\n Indian Income Tax Act,1922 (XI of 1922),ss.23,30(1)(2),31,\n33-Assessment of Income-tax-Notice of demand-Appeal  against\nassessment-Received  in Appellate  Assistant  Commissioner's\nOffice out of time-Prayer for condonation of delay rejected-\nOrder of Assistant Commissioner dismissing an appeal as\t out\nof time-Whether one under s. 30(2)or under s. 31 of the Act-\nWhether appeal competent therefrom.\n\n\n\nHEADNOTE:\nThe appellant firm filed appeals against orders assessing it\nto  income-tax\tand super-tax for the  years  1945-1946\t and\n1946-1947  beyond  the time prescribed by s.  30(2)  of\t the\nIncome-tax Act.\t The appeals were numbered, and notices were\nissued for their hearing under s. 31.  At the hearing of the\nappeals\t before\t the Appellate Assistant  Commissioner,\t the\nDepartment  took the objection that the appeals were  barred\nby time.  The appellant prayed for condonation of delay, but\nthat  was refused, and the appeals were dismissed  as  time-\nbarred.\t  The appellant then preferred appeals\tagainst\t the\norders of dismissal to the Tribunal under s. 33 of the\tAct,\nand  the  Tribunal  dismissed them on the  ground  that\t the\norders\tof  the\t Assistant Commissioner\t were  in  substance\npassed\tunder  s. 30(2) and not under s. 31 of the  Act\t and\nthat no appeal lay against them under s. 33 of the Act.\nOn a reference under s. 66(1) of the Act the High Court held\nthat the orders of the Appellate Assistant Commissioner were\nmade  under s. 30(2) and were not appealable under s. 33  of\nthe Act.\nOn appeal by special leave to the Supreme Court the question\nfor determination was whether an order dismissing an  appeal\npresented under s. 30 as out of time was one under s.  30(2)\nor under s. 31 of the Act because if it was the former there\nwas  no appeal provided against it; if it was the latter  it\nwas open to appeal under s. 33.\nHeld that the orders of the Appellate Assistant Commissioner\nfell within s. 31.\nA  right of appeal is a substantive right and is a  creature\nof the statute.\t S. 30(1) confers on the assessee a right of\nappeal\tagainst\t certain orders and an order  of  assessment\nunder  s. 23 is one of them.  The appellant had therefore  a\nsubstantive  right under s. 30(1) to prefer appeals  against\norders of assessment made by the Income Tax Officer.\n167\nAn  appeal presented out of time is an appeal and  an  order\ndismissing it as time-barred is one passed in appeal.\nSection 31 is the only provision relating to the hearing and\ndisposal of appeals and if an order dismissing an appeal  as\nbarred by limitation as in the present case is one passed in\nappeal\tit  must fall within s. 31 and as s.  33  confers  a\nright  of appeal against all orders passed under s.  31,  it\nmust also be appealable.\nTo  fall  within s. 31 it is not necessary  that  the  order\nshould expressly address itself to and decide on the  merits\nof  the assessment and it is sufficient that the  effect  of\nthe order is to confirm the assessment as when the appeal is\ndismissed on a preliminary point.\nAn  order rejecting an appeal on the, ground  of  limitation\nafter it had been admitted is one under s. 31, though  there\nis no consideration of the merits of the assessment.\nHeld  therefore that the orders of the\tAppellate  Assistant\nCommissioner  holding that there were no sufficient  reasons\nfor  excusing the delay and rejecting the appeals  as  time-\nbarred would be orders passed under s. 31 and would be\topen\nto  appeal, and it would make no difference in the  position\nwhether\t the orders of dismissal were made before  or  after\nthe appeals were admitted.\nCommissioner  of  Income-tax,  Madras v. Mtt.<\/a>  `r.   S.\t Ar.\nArunachalam Chettiar, ([1953] S.C.R. 463), explained.\nCase-law discussed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 17 of 1954.
\nAppeal\tby Special Leave from the Judgment  and\t Order-dated
\nthe 11th day of June 1951 of the Punjab High Court in  Civil
\nReference No. 2 of 1951.\n<\/p>\n
Hardyal Hardy and Sardar Singh, for the appellant.
\nC. K. Daphtary, Solicitor-General of India (G.\tN.
\nJoshi and R. H. Dhebar, with him) for the ‘respondent.
\n1956.  February 21.  The Judgment of the Court was delivered
\nby
\nVENKATARIAMA  AYYAR J.–The appellant is a firm carrying  on
\nbusiness at Ludhiana in the Punjab.  The Income-tax  Officer
\nassessed  its  income for 1945-1946 at Rs.  71,186,  and  on
\n17-9-1947  a  notice  of demand -was served on\tit  for\t Rs.
\n29,857-6-0  on\taccount of income-tax  and  super-tax.\t The
\nappellant preferred an
\n168<\/span>
\nappeal against the assessment, and it was actually  received
\nin the office of the Appellate Assistant Commissioner on  5-
\n11-1947.  It was then out of time by 19 days; but the appeal
\nwas  registered\t as  No. 86, and notice\t for  hearing  under
\nsection\t 31 was issued for 13-12-1947, and after  undergoing
\nseveral\t adjournments, it was actually heard  on  1-10-1948.
\nFor the year 1946-1947, the Income-tax Officer assessed\t the
\nincome\tof  the\t firm at Rs. 1,09,883, and  on\t29-9-1947  a
\nnotice\tof  demand was served on it for Rs.  51,313-14-0  on
\naccount\t  of  income-tax  and  super-tax.    The   appellant
\npreferred  an  appeal against this assessment,\tand  it\t was
\nactually  received in the office of the Appellate  Assistant
\nCommissioner  on  5-11-1947, and it was then 7 days  out  of
\ntime.\tIt was registered as No. 89, and notice for  hearing
\nunder  section 31 was issued for 24-6-1948.  Eventually,  it
\nwas heard along with Appeal No. 86 on 1-10-1948.
\n  At the hearing, the Department took the objection that the
\nappeals\t were  presented  out of time,\tand  were  therefore
\nliable\t to   be  dismissed.   The  appellant\tprayed\t for
\ncondonation of the delay on the ground that following on the
\npartition of the country the conditions were very unsettled,
\nthat curfew order had been promulgated and was in force, and
\nthat the post office did not accept registered letters,\t and
\nthat  the traffic on the Grand Trunk Road was  closed.,\t and
\nthat  in  view of these exceptional  circumstances,  it\t bad
\nsufficient cause for not presenting the appeals in time.  On
\n31-12-1948  the\t Appellate  Assistant  Commissioner   passed
\norders\tin  both  the appeals, holding that  there  was\t not
\nsufficient  ground  for condoning the delay,  and  rejecting
\nthem  in limine.  These orders were purported to  be  passed
\nunder section 31 read along with section 30(2).
\n  Against  these  orders, the  appellant  preferred  appeals
\nunder section 33 of the Act to the Appellate Tribunal  which
\nby  its\t order dated 4-4-1950 dismissed them on\t the  ground
\nthat  the  orders  of the  Assistant  Commissioner  were  in
\nsubstance passed under section 30 (2) and not under  section
\n31 and that no appeal lay against them under section 33,  On
\nthe applica-\n<\/p>\n
169<\/span><\/p>\n
tions of the appellant, the Tribunal referred under  section
\n66(1)  of the Income Tax Act the following question for\t the
\ndecision of the High Court of Punjab:\n<\/p>\n
 “Whether  in the circumstances of the case appeals  lay  to
\nthe  Tribunal  against\torders of  the\tAppellate  Assistant
\nCommissioner dismissing the appeals against the\t assessments
\nfor the years 19451946 and 1946-1947 in limine”.
\n  The  reference was beard by Khosla and Harnam\t Singh\tJJ.,
\nwho  held  following an earlier decision of  that  court  in
\nDewan Chand v. Commissioner of Incometax(1) that the  orders
\nof  the Appellate Assistant Commissioner were under  section
\n30(2)  and not appealable under section 33.  Certificate  to
\nappeal to this Court against this order having been  refused
\nby  the High Court, the appellant applied for  and  obtained
\nleave to appeal to this Court under article 136 of the\tCon-
\nstitution, and that is how the appeal comes before US.
\n  The provisions of the Act bearing on the question may\t now
\nbe  referred  to.  Section 30(1) confers on the\t assessee  a
\nright  of  appeal against orders passed under  the  sections
\nspecified  therein.  Section 30(2) provides that the  appeal
\nshall  ordinarily  be presented within thirty  days  of\t the
\norder\tof   assessment,   but\t the   Appellate   Assistant
\nCommissioner may admit an appeal after the expiration of the
\nperiod if he is satisfied that the appellant bad  sufficient
\ncause  for  not presenting it within that  period.   Section
\n30(3)  provides that “the appeal shall be in the  prescribed
\nform  and  shall  be verified  in  the\tprescribed  manner”.
\nSection\t 31(1) enacts that “the Appellate Assistant  Commis-
\nsioner\tshall  fix a day and place for the  hearing  of\t the
\nappeal,\t and  may from time to time  adjourn  the  hearing”.
\nSection\t 31(3)\tspecifies the orders that may be  passed  in
\nappeals according as they are directed against orders passed
\nunder the one or the other of the sections of the Act  which
\nare specified in section 30(1).\t When the appeal is  against
\nan order of assessment under section 23-and this is what  we
\nare con-\n<\/p>\n
(1)  (1951] 20 1 T.R. 621,
\n170<\/span>
\ncerned with in this appeal-it is provided in section  31(3),
\nclauses\t (a)  and (b) that in disposing of  the\t appeal\t the
\nAppellate  Assistant Commissioner may (a)  confirm,  reduce,
\nenhance\t or  annul  the assessment, or\t(b)  set  aside\t the
\nassessment  and\t direct the.  Incometax Officer\t to  make  a
\nfresh  assessment after making such further enquiry  as\t the
\nIncome-tax Officer thinks fit.\tSection 33(1) enacts that,
\n“Any  assessee objecting to an order passed by an  Appellate
\nAssistant  Commissioner under section 28 or section  31\t may
\nappeal\tto the Appellate Tribunal within sixty days  of\t the
\ndate on which such order is communicated to him”.
\n Stated succinctly, section 30 confers a right of appeal  on
\nthe  assessee,\tsection\t 31 provides  for  the\thearing\t and
\ndisposal  of the appeal, and section 33 confers a  right  of
\nfurther appeal against orders passed under section 31,
\n Now,  on these provisions the question is whether an  order
\ndismissing  an appeal presented under section 30 as  out  of
\ntime  is one under section 30(2) or under section 31 of\t the
\nAct.   If  it  is the former, there is\tno  appeal  provided
\nagainst it; if it is the latter, it is open to appeal  under
\nsection\t 33.   On  this question, there\t has  been  a  sharp
\nconflict  of  opinion among different High Courts  and\teven
\namong different Benches of the same High Court.\t The  Bombay
\nHigh Court has held that when an appeal is presented out  of
\ntime,  and there is no order of condonation of\tdelay  under
\nsection\t 30(2),\t there\tis, in law,  no\t appeal\t before\t the
\nAppellate  Assistant Commissioner, and that an order by\t him
\nrejecting the appeal does not fall within section 31 and  is
\nnot  appealable: Commissioner of Income-tax v.\tMysore\tIron
\nand Steel Works<\/a>(1) and K. K. Porbunderwalla v.\tCommissioner
\nof  Income-tax<\/a>(2); but that if the appeal is admitted  after
\nan  order  of condonation is made under\t section  30(2),  an
\norder  subsequently  passed dismissing it on the  ground  of
\nlimitation  would  be  one under section  31  and  would  be
\nappealable under section 33 and the result will be the\tsame
\neven when the appeal is admitted without
\n(1) .[1949] 17 I.T.R. 478,
\n(2) [1952] 21 I.T.R. 63.\n<\/p>\n
171<\/span><\/p>\n
any  order of condonation under section 30(2):\tChampalal  A
\nsharam v. Commissioner of Income-tax(1).
\n The  High Court of Allahabad has also taken the same  view,
\nand  held  that\t an  order refusing  to\t condone  delay\t and
\nrejecting an appeal before it was admitted was not one under
\nsection\t 31 and was not appealable: Vide Shivnath Prasad  v.
\nCommissioner  of  Income-tax,  Central\tand  U.\t P.(3)\t and
\nMunicipal Board, Agra v. Commissioner of Income-tax, U.\t P.(
\n3 ); but that ail order dismissing the appeal as time-barred
\nafter it had been admitted was one under section 31 and\t was
\nappeable: Mohd.\t Nain Mohd.  Alam v. Commissioner of Income-
\ntax(1).\t  The  High  Court  of\tPunjab\thas  held  following
\nShivnath  Prasad v. Commissioner of  Incometax, Central\t and
\nU.  P.(2) and Commissioner of Incometax v. Mysore  Iron\t and
\nSteel\tWorks(5)   that\t  when\t the   Appellate   Assistant
\nCommissioner  declines\tto  condone delay  and\trejects\t the
\nappeal,\t it is one under section 30(2) and  not\t appealable.
\nIt  has\t further  held\tthat even if  the  appeal  bad\tbeen
\nadmitted  without an order of condonation and  dismissed  at
\nthe  hearing  on the ground of limitation, it would  not  be
\nunder section 31, because the scheme of the Act contemplated
\nthat an order to be passed under that section must relate to
\nthe  merits of the assessment.\tIt is on this decision\tthat
\nthe judgment under appeal is based It may be mentioned\tthat
\nthe decision in Dewan Chand v. Commissioner of Income-tax(6)
\nwas  dissented from in a recent decision of the Punjab\tHigh
\nCourt in General Agencies v. Income-tax Commissioner(7) .
\nIn  Commissioner of Income-tax v. Shahzadi Begum the  Madras
\nHigh Court has held that an order-declining to excuse  delay
\nand rejecting the appeal is one under section 31, whether it
\nis made before the appeal is admitted or after, and that  an
\nappeal which is filed out of time is, nonetheless, an appeal
\nfor purposes of section 31, and that an order dismissing  it
\nwould be appealable under section 33.  In Gour Mohan
\n(1)  [1953] 23 I.T.R. 464,
\n(3)  [1951] 19 I.T.R. 63.\n<\/p>\n
(5)  [1949] 17 I.T.R. 478.\n<\/p>\n
(7)  A.I R. 1956 Punjab 26.\n<\/p>\n
(2)  [1936] 3 I.T.R. 200.\n<\/p>\n
(4)  [1951] 19 I.T.R. 58.\n<\/p>\n
(6)  [1951] 20 I.T.R. 621.\n<\/p>\n
(8)  [1952] 21 I.T.R. 1.\n<\/p>\n
172<\/span><\/p>\n
Mullick\t v. Commissioner of Agricultural Income-tax(1),\t the
\nCalcutta  High Court has, after a full discussion,  come  to
\nthe  conclusion that an order of dismissal on the ground  of
\nlimitation  at\twhatever  stage was  one  which\t fell  under
\nsection\t 31.   It  is  unnecessary to  refer  to  the  views
\nexpressed  in decisions of other High Courts, as  the  point
\nnow  under  discussion did not directly arise  for  decision
\ntherein.\n<\/p>\n
  The question is which of these views is the correct one to
\nadopt.\tWe start with this that under section 33 it is\tonly
\norders\tunder section 31 that are appealable.  The  question
\ntherefore narrows itself to this whether an order  declining
\nto condone delay and dismissing the appeal as barred by time
\nis  an order under section 31.\tIt will be, if it is  passed
\nin  appeal against an order of assessment, and is one  which
\naffirms\t it.   Now, the conflicting views expressed  by\t the
\nseveral\t High  Courts centre round two points: (1)  when  an
\nappeal is presented out of time and there has been a refusal
\nto condone delay under section 30(2), is an order  rejecting
\nit as time-barred one passed in appeal; and (2) if it is, is
\nsuch  an order one confirming the assessment within  section
\n31(3)(a)?\n<\/p>\n
  On the first point, as already stated, it has been held by
\nthe  Bombay  High Court that while an  order  dismissing  an
\nappeal\tas  time-barred after it is admitted  is  one  under
\nsection 31, a similar order passed before it is admitted  is
\none  under section 30(2).  The ratio of this distinction  is
\nstated\tto  be that in law there is no appeal unless  it  is
\npresented in time, and if presented beyond time, unless\t the
\ndelay  is excused.  In Commissioner of Income-tax v.  Mysore
\nIron  and Steel Works<\/a>(2), Chagla, C.J. stated  the  position
\nthus:\n<\/p>\n
  “An  asseesee has a statutory right to present  an  appeal
\nwithin thirty days without any order being required from the
\nAppellate  Assistant  Commissioner  for\t admission  of\tthat
\nappeal.\t  But  if  the time prescribed\texpires,  then\tthat
\nstatutory right to present an appeal goes; and an appeal can
\nonly be entertained provided it is admitted by the Appellate
\nAssistant Commissioner after condoning the delay.
\n(1) [1952] 22 I.T.R. 131.\n<\/p>\n
(2) [1949] 17 I.T.R. 478.\n<\/p>\n
173<\/span><\/p>\n
Therefore  before an appeal could be admitted in this  case,
\nan  order  from\t the Appellate\tAssistant  Commissioner\t was
\nrequisite  that the delay had been condoned and it was\tonly
\non  such  an  order  being made that  the  appeal  could  be
\nentertained  by the Appellate Assistant\t Commissioner.\t Now
\nsection 31 deals only with such appeals which are  presented
\nwithin the prescribed period or admitted after the delay has
\nbeen  condoned,\t and the procedure laid down in\t section  31
\nwith  regard to the hearing of appeals only applies to\tsuch
\nappeals.   Therefore,  in  my opinion,\twhen  the  Appellate
\nAssistant  Commissioner refused to condone the delay,  there
\nwas no appeal before him which he could hear and dispose  of
\nas  provided under section 31 of the Act.  Section  33\tthen
\ngives the right of appeal to the assessee from an order made
\nby the Appellate Assistant Commissioner either under section
\n28  or under section 31.  Therefore the Legislature did\t not
\ngive  the right of appeal to the assessee against  an  order
\nmade  by the Appellate Assistant Commissioner under  section
\n30 of the Act”.\n<\/p>\n
Learned\t counsel for the appellant disputes the\t correctness
\nof  the\t last  observation that an order  of  the  Appellate
\nAssistant  comissioner refusing to condone the delay is\t one
\nunder  section 30(2), and contends that the only order\tthat
\ncould  be passed under that section was one excusing  delay,
\nand  an order refusing to condone it will fall\toutside\t it,
\nand that such an order could only be made under section\t 31.
\nWe  find  it difficult to accede to this  contention.\tWhen
\npower  is  granted to an authority to be  exercised  at\t his
\ndiscretion, it is necessarily implicit in the grant that  he
\nmay  exercise it in such manner as the\tcircumstances  might
\nwarrant.  And if the Appellate Assistant Commissioner has  a
\ndiscretion to excuse the delay, he has also a discretion  in
\nappropriate cases to decline to do so.\tWe are therefore  of
\nopinion\t that the refusal to excuse delay is an order  under
\nsection 30(2.).\n<\/p>\n
 But  the question still remains whether the view  taken  in
\nCommissioner of Income-tax v. Mysore Iron<\/a>
\n23<\/span>
\n174<\/span>
\nand  Steel Works(1) and K. K. Porbunderwalla v\tCommissioner
\nof  Income-tax (2) that an appeal which is filed beyond\t the
\nperiod\tof  limitation\tis, in the eye of  law,\t no  appeal,
\nunless and until there is a condonation of delay, and  that,
\nin consequence, an order passed thereon cannot be held to be
\npassed\tin appeal so as to fall within section 31 is  right.
\nNow,  a\t right of appeal is a substantive right,  and  is  a
\ncreature  of  the  statute.  Section 30(1)  confers  on\t the
\nassessee  a right of appeal against certain orders,  and  an
\norder  of assessment under section 23 is one of\t them.\t The
\nappellant  therefore had a substantive right  under  section
\n30(1) to prefer appeals against orders of assessment made by
\nthe  Income-tax\t Officer.  Then, we come to  section  30(2),
\nwhich enacts a period of limitation within which this  right
\nis  to be exercised.  If an appeal, is not presented  within
\nthat time, does that cease to be an appeal as provided under
\nsection\t 30(1)?\t  It  is  well\testablished  that  rules  of
\nlimitation,  pertain  to the domain of adjectival  law,\t and
\nthat  they  operate  only  to bar  the\tremedy\tbut  not  to
\nextinguish  the\t right.\t An appeal preferred  in  accordance
\nwith section 30(1) must, therefore, be an appeal in the\t eye
\nof  law,  though  having been presented\t beyond\t the  period
\nmentioned  in section 30(2) it is liable to be dismissed  in
\nlimine.\t  There might be a provision in the statute that  at
\nthe  end of the period of limitation prescribed,  the  right
\nwould  be  extinguished, as for example, section 28  of\t the
\nLimitation  Act; but there is none such here.  On the  other
\nhand,  in conferring a right of appeal under  section  30(1)
\nand  prescribing  a period of limitation  for  the  exercise
\nthereof separately under section 30 (2), the legislature has
\nevinced\t an  intention\tto maintain  the  distinction  well-
\nrecognised   under  the\t general  law  between\twhat  is   a
\nsubstantive  right and what is a matter of  procedural\tlaw.
\nIn  Nagendranath  Dey v. Suresh Chandra Dey(3)\tSir  Dinshaw
\nMulla  construing the word ‘ appeal’ in the third column  of
\narticle 182 of the Limitation Act observed:
\n “There is no definition of appeal in the Civil Pro-
\n(1) [1949] 17 I.T.R. 478.     (2) [1952] 21 I.T.R. 63.
\n(3)  59 I.A. 283, 287.\n<\/p>\n
175<\/span><\/p>\n
cedure\tCode,  but their Lordships have no  doubt  that\t any
\napplication by a party to an appellate, Court, asking it  to
\nset aside or revise a decision of a subordinate Court, is an
\nappeal within the ordinary acceptation of the term, and that
\nit  is\tno  less  an  appeal  because  it  is  irregular  or
\nincompetent”.\n<\/p>\n
 These\tobservations  were  referred to\t with  approval\t and
\nadopted by this Court in Raja Kulkarni and others v.   The
\nState of Bombay<\/a>(1).  In Promotho Nath Roy v. W.\t  A. Lee(2),
\nan  order dismissing an application as barred by  limitation
\nafter  rejecting  an  application under\t section  5  of\t the
\nLimitation Act to excuse the delay in presentation was\theld
\nto  be one “passed on appeal” within the meaning of  section
\n109  of\t the Civil Procedure Code.  On the  principles\tlaid
\ndown in these decisions, it must be held that an appeal pre-
\nsented out of time is an appeal, and an order dismissing  it
\nas time-barred is one passed in appeal.\n<\/p>\n
Then,  the  next question is whether it is an  order  passed
\nunder  section\t31  of the Act.\t That section  is  the\tonly
\nprovision  relating to the hearing and disposal of  appeals,
\nand if an order dismissing an appeal as barred by limitation
\nis  one\t passed in appeal, it must fall within\tsection\t 31.
\nAnd  as\t section 33 confers a right of\tappeal\tagainst\t all
\norders passed under section 31, it must also be\t appealable.
\nBut  then,  it\tis  contended  that  in\t an  appeal  against
\nassessment the only order that could be passed under section
\n31 (3)(a) is one which confirms, reduces, enhances or annuls
\nthe  assessment, that such an order could be made only on  a
\nconsideration of the merits of the appeal, and that an order
\ndismissing it on the ground of limitation is not within\t the
\nsection.   That\t was  the  view\t taken\tin  Dewan  Chand  v.
\nCommissioner  of Income-tax(3).\t But there is practically  a
\nunanimity of opinion among all the other High Courts that to
\nfall within the section it is not necessary that the-  order
\nshould expressly address itself to and decide on the  merits
\nof the assessment, and that it is sufficient that the effect
\nof the order is to confirm the assessment
\n(1) [1954] S.C.R. 384, 388.   (2) A.I.R. 1921 Cal. 415.\n<\/p>\n
\t\t (3) [1951] 20 I.T.R. 621.\n<\/p>\n
176<\/span><\/p>\n
as when the appeal is dismissed on a preliminary point.\t  In
\nCommissioner\tof   Income-tax\t  v.   Shahzadi\t   Begum(1),
\nSatyanarayana Rao, J. said:\n<\/p>\n
 “If  the appeal is dismissed as incompetent or is  rejected
\nas  it\twas filed out of time and no  sufficient  cause\t was
\nestablished,  it  results  in an affirmation  of  the  order
\nappealed against”.\n<\/p>\n
 In  Gour  Mohan  Mullick v.  Commissioner  of\tAgricultural
\nIncome-tax(2),\tconstruing  sections 34, 35 and\t 36  of\t the
\nBengal\tAgricultural  Income-Tax  Act  which  are  in  terms
\nidentical with those of sections 30, 31 and 33 of the Indian
\nIncome-Tax Act, Chakravarti, J. observed:
\n  “I  would base that view on the ground that the order,  in
\neffect,\t confirmed the assessment or, at any rate,  disposed
\nof  the\t appeal\t and was thus an  order\t under\tsection\t 35,
\nbecause what that section really contemplates is a  disposal
\nor  conclusion\tof  the\t appeal\t and  the  forms  of  orders
\nspecified in it are not exhaustive.  An appellate order\t may
\nnot,  directly and by itself, confirm, or reduce or  enhance
\nor  annul an assessment and may yet dispose of\tthe  appeal.
\nIf  it\tdoes so, it is immaterial whether the  ground  is  a
\nfinding that the appeal is barred by limitation or a finding
\nthat  the  case is not a fit one for extension\tof  time  or
\nboth”.\n<\/p>\n
 This  reasoning is also the basis of the decisions  of\t the
\nBombay\tand Allahabad High Courts which bold that  an  order
\nrejecting an appeal on the ground of limitation after it had
\nbeen  admitted is one under section 31, though there  is  no
\nconsideration of the merits of the assessment.\tThus, in  K.
\nK. Porbunderwalla v. Commissioner of Income-tax<\/a>(3),  Chagla,
\nC. J. observed:\n<\/p>\n
“….\talthough the Appellate Assistant Commis\t sioner\t did
\nnot  hear the appeal on merits and held that the appeal\t was
\nbarred by limitation his order was under section 31 and\t the
\neffect of that order was to confirm the assessment which bad
\nbeen made by the Income-tax Officer”.\n<\/p>\n
In Special Manager of Court of Wards v. Commissioner
\n(1) [1952] 21 I.T.R. 1.\t\t (2) [1952] 22 I.T.R. 131.
\n(3)  [1952] 21 I.T.R. 63.\n<\/p>\n
177<\/span><\/p>\n
of  Income-tax(1), the Allahabad High Court stated that\t the
\nview was “possible that even though the period of limitation
\nis  prescribed\tunder  section 30 and  the  power  to  grant
\nextension is also given in that section the power is  really
\nexercised  under  section  31  as  the\tAppellate  Assistant
\nCommissioner  when  he decides not to extend the  period  of
\nlimitation  may\t be said in a sense to\thave  confirmed\t the
\nassessment”.\n<\/p>\n
  The  respondent  relied  on  a  later\t decision  of\tthe)
\n‘Allahabad  High  Court\t in Mahabir  Prasad  Niranjanlal  v.
\nCommissioner  of Income-tax(2), wherein it was held  by\t the
\nlearned\t Judges,  departing  from  the\tprevious  course  of
\nauthorities  of that court, that an order of  the  Appellate
\nAssistant  Commissioner dismissing an appeal as\t time-barred
\nwas  one under section 30(2) and not under section  31,\t and
\nwas  therefore\tnot appealable.\t This conclusion  they\tfelt
\nthemselves bound to adopt by reason of certain\tobservations
\nof this Court in Commissioner of Income-tax, Madras v.\tMtt.
\nAr.  S. Ar.  Arunachalam Chettiar<\/a>(3).  But when read in\t the
\ncontext\t of  the point that actually arose for\tdecision  in
\nthat  case,  those  observations  lend\tno  support  to\t the
\nconclusion reached by the learned Judges.  There, the  facts
\nwere  that  an appeal was preferred by\tthe  assessee  under
\nsection\t 30(1) against an order of the\tIncome-tax  Officer,
\nand   that   was  dismissed  by\t the   Appellate   Assistant
\nCommissioner  on 19-11-1945 as incompetent.  No\t appeal\t was
\nfiled  against this order, and it became final.\t But  acting
\non  a  suggestion made in the order  dated  19-11-1945,\t the
\nassessee filed an original miscellaneous application  before
\nthe  Appellate Tribunal for relief, and by its\torder  dated
\n20-2-1946 the Tribunal set aside the findings of the Income-
\ntax  Officer, and directed him to make a fresh\tcomputation.
\nThen, on the application of the Commissioner of\t Income-tax,
\nthe Tribunal referred to the High Court under section  66(1)
\nof the Income-tax Act the following question:
\n  “Whether in the facts and circumstances of the
\ncase, the order of the Bench dated 20th February,
\n(1) [1950] 18 I.T.R. 204, 212.\t(2 ) [1955] 27 I.T.R. 268.
\n(3)  [1953] S.C.R. 463: 474-475,
\n178<\/span>
\n1946  in  the miscellaneous application\t is  an\t approoriate
\norder\tand   is  legally  valid  and  passed\twithin\t the
\njurisdiction and binding on the Income-tax Officer”.
\n  The  High Court declined to answer this reference  on\t the
\nground that the order of the Tribunal was not one passed  in
\nan appeal under section 33(1), and that In consequence,\t the
\nreference  under section 66(1) was itself incompetent.\t The
\ncorrectness  of\t this decision was challenged on  appeal  to
\nthis Court, and in affirm ing it, this Court observed:
\n  ……..  when  on  19th  November  1945,  the   Appellate
\nAssistant  Commissioner\t declined to admit the\tappeal,\t the
\nassessee  did  not  prefer  any\t appeal\t but  only  made   a
\nmiscellaneous  application  before the\tAppellate  Tribunal.
\nThere  is  no  provision  in  the  Act\tpermitting  such  an
\napplication.   Indeed,\tin  the statement of  the  case\t the
\nAppellate   Tribunal  states  that  in\t entertaining\tthat
\napplication  and  correcting  the error\t of  the  Income-tax
\nOfficer\t it  acted in exercise of what it  regarded  as\t its
\ninherent powers.  There being no appeal under section  33(1)
\nand  the order having been made in exercise of its  supposed
\ninherent jurisdiction, the order cannot possibly be regarded
\nas  one under section 33(4) and there being no\torder  under
\nsection\t 33(4)\tthere could be no  reference  under  section
\n66(1) or (2), and the appellate Court properly refused to
\nentertain it”.\n<\/p>\n
  There is, of course, nothing in the decision itself  which
\nbears  on  the\tpoint now  under  discussion.\tBut  certain
\nobservations occurring at pages 474 and 475 were referred to
\nby  the learned Judges as leading to the conclusion that  an
\norder  dismissing  an appeal as barred by  time\t would\tfall
\nundersection 3O(2).  Now, those observations came to be made
\nby  way\t of answer to a new contention put  forward  by\t the
\nlearned,  Attorney-General in support of the  appeal.\tThat
\ncontention was that the miscellaneous application  presented
\nto  the Tribunal might be treated as an appeal\tagainst\t the
\norder  dated  19-11-1945,  in which case  the  order  passed
\nthereon on 20-2-1946 would fall under section 33(4) and\t the
\nreference would be com-\n<\/p>\n
179<\/span><\/p>\n
petent.\t  ‘In disagreeing with this contention,\t this  Court
\nobserved   that\t the  appeal  to  the  Appellate   Assistant
\nCommissioner was incompetent under section 30(1), that\teven
\nif it was competent, the order dated 19-11-1945 was not\t one
\ncontemplated  by  section 31, and there could be  no  appeal
\nagainst\t such an order under section 33(1).  Now, it  should
\nbe noticed that the question actually referred under section
\n66(1)  was the correctness and legality of the order  passed
\nin a miscellaneous application and not of any order made  in
\nan  appeal preferred under section 33(1).  In this  context,
\nthe  point  sought to be raised by  the\t learned,  Attorney-
\nGeneral\t did  not  arise  at  all  for\tdecision,  and\t the
\nobservations   in  answer  thereto  cannot  be\tread  as   a
\npronouncement on the question of the maintainability of\t the
\nappeal, much less as a decision that an order dismissing  an
\nappeal\tas barred by limitation is one under section  30(2).
\nAccordingly,  the  question whether an order  dismissing  an
\nappeal as barred by limitation falls under section 30(2)  or
\nsection 31 remains unaffected by the observations in Commis-
\nsioner\tof Income-tax, Madras v. Mtt.  Ar.  S.\tAr.   Aruna-<\/a>
\nchalam Chettiar(1).\n<\/p>\n
  Then again, under the provisions of the Act, limitation is
\nnot the only preliminary ground on which an appeal could  be
\ndisposed of without a consideration of the merits.   Section
\n30(3)  provides that an “appeal shall be in  the  prescribed
\nform  and shall be verified in the prescribed  manner”.\t  If
\nthe  Appellate Assistant Commissioner holds that the  appeal
\ndoes not comply with the requirements of this enactment\t and
\nrejects it on that ground, the order must be one made  under
\nsection 31, since section 30(3) makes no provision for\tsuch
\nan  order, as does section 30(2) in the case of\t limitation.
\nAll  the  orders  under section 31  being  appealable  under
\nsection\t 33, the order of dismissal for\t noncompliance\twith
\nsection 30(3) must also be appealable, and it was so decided
\nin  Maharani Gyan Manjari Kuari v. Commissioner\t of  Income-
\ntax(2)\t.  How\tis  this view  to  be  reconciled  with\t the
\ncontention that section 31 contemplates only orders on the
\n(1) [1953] S.C.R. 463.\n<\/p>\n
(2) (1944) 12 I.T.R. 59.\n<\/p>\n
180<\/span><\/p>\n
merits\tof  the assessment and not  on\tpreliminary  issues?
\nVide also the decision in Kunwarji Ananda v. Commissioner of
\nIncome-tax(1),\twhich was followed in Maharani Gyan  Manjari
\nKuari  v. Commissioner of Income-tax(2), and in\t Ramnarayana
\nDas Mandal v. Commissioner of Income-tax(3).  There is\tthus
\nabundant  authority for the position that section 31  should
\nbe  liberally  construed so as to include  not\tonly  orders
\npassed\ton a consideration of the merits of  the  assessment
\nbut  also orders which dispose of the appeal on\t preliminary
\nissues, such as limitation and the like.\n<\/p>\n
  The  learned\tSolicitor-General sought to get\t over  these
\ndecisions  by taking up the position that section 31(3)\t (a)
\nconstrued  in  its  literal and\t ordinary  sense,  conferred
\njurisdiction on the Appellate Assistant Commissioner only to
\npass orders on the merits of the assessment, that it was not
\ntherefore  open to him to entertain any question  which\t did
\nnot directly relate to such merits, and that accordingly  he
\ncould  not hear or decide any issue of a preliminary  nature
\nsuch as limitation, and dispose of the appeal on the  ,basis
\nof  the\t finding  on  that issue.   He\tconceded  that\tthis
\ncontention  would run counter to numerous  authorities,\t but
\nargued\t that  they  were  all\twrong.\t Having\t given\t due
\nconsideration to this contention, we are of opinion that  it
\nis not well-founded.\n<\/p>\n
  Taking  the  plea  of\t limitation-which  is  what  we\t are
\nconcerned  with in this appeal when there is a\tjudgment  or
\norder  against which the statute provides a right of  appeal
\nbut  none is preferred within the time prescribed  therefor,
\nthe respondent acquires a valuable right, of which he cannot
\nbe  deprived by an order condoning delay and  admitting\t the
\nappeal behind his back.\t And when such an order is passed ex
\npartehe\t has  a right to challenge its\tcorrectness  at\t the
\nbearing\t of  the  appeal.  That is the\tposition  under\t the
\ngeneral\t law  (vide  Krishnasami .  Panikondar\tv.  Ramasami
\nChettiar(4),  and there is nothing in the provisions of\t the
\nIncome Tax Act, which enacts a different principle.
\n(1)  I\tL.R. 11 Patna 187; A.I.R. 1931 Patna 306;  5  I.T.C.\n<\/p>\n
417.
\n(2) [1944]12 I.T.R. 59.\t       (3) (1950) 18 I.T.R. 660.
\n(4) [1918] I.L.R. 41 Mad. 412; 45 I.A. 25.\n<\/p>\n
  181<\/span><\/p>\n
Therefore,  if\tan appeal is admitted without  the  fact  of
\ndelay  in presentation having been noticed, clearly it\tmust
\nbe open to the Department to raise the objection at the time
\nof the hearing of the appeal.  That would also appear to  be
\nthe  practice obtaining before. the Income-tax Tribunal,  as
\nappears from the decisions cited before us, and that, in our
\nopinion,  is right.  Similar considerations would  apply  to
\nother  objections  of a preliminary character, such  as\t one
\nbased on section 30, sub-section (3).  We should be slow  to
\nadopt  a  construction which deprives  parties\tof  valuable
\nrights.\t  We  are  therefore  of  opinion  that\t contentions
\nrelating to preliminary issues are open to consideration  at
\nthe  time  of  the  hearing of\tthe  appeal,  and  that\t the
\njurisdiction of the Appellate Assistant Commissioner is\t not
\nlimited\t to the bearing of the appeal on the merits  of\t the
\nassessment only.  In this view, the orders of the  Appellate
\nAssistant Commissioner holding that there were no sufficient
\nreasons for excusing the delay and rejecting the appeals  as
\ntime-barred  would  be orders passed under  section  31\t and
\nwould be open to appeal, and it would make no difference  in
\nthe  position whether the order of dismissal is made  before
\nor after the appeal is admitted.\n<\/p>\n
The  question referred must accordingly be answered  in\t the
\naffirmative.  This appeal will therefore be allowed, and the
\norder of the court below set aside.  The appellant will have
\nhis costs here and in the court below.\n<\/p>\n
24<\/span>
\n182<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Messrs Mela Ram & Sons vs The Commissioner Of … on 21 February, 1956 Equivalent citations: 1956 AIR 367, 1956 SCR 166 Author: T V Aiyyar Bench: Aiyyar, T.L. Venkatarama PETITIONER: MESSRS MELA RAM & SONS Vs. RESPONDENT: THE COMMISSIONER OF INCOME-TAX,PUNJAB. DATE OF JUDGMENT: 21\/02\/1956 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166507","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMessrs Mela Ram & Sons vs The Commissioner Of ... on 21 February, 1956 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/messrs-mela-ram-sons-vs-the-commissioner-of-on-21-february-1956\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Messrs Mela Ram & Sons vs The Commissioner Of ... on 21 February, 1956 - 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