SHRIMANT GOVINDRAO NARAYANRAO GHORPADE Vs. COMMISSIONER OF INCOME TAX
LAWS(BOM)-1962-6-7
HIGH COURT OF BOMBAY
Decided on June 21,1962

SHRIMANT GOVINDRAO NARAYANRAO GHORPADE Appellant
VERSUS
COMMISSIONER OF INCOME TAX Respondents

JUDGEMENT

Y.S.TAMBE J. - (1.)THIS is a reference at the instance of the applicant -assessee under Sub -S. (1) of S. 66 of the Indian Income -tax (hereinafter referred to as the Act). The applicant -assessee is the present jagirdar of Ichalkaranji of the former Kolhapur State. He attained majority on 23rd June, 1956. During his minority his estate was under the management and superintendence of the Court of Wards, the Collector of Kolhapur being the Court of Wards. We are here concerned with five asst. yrs. 1950 -51 to 1954 -55 which fell during the minority of the applicant. The assessment orders in respect of these years were made under S. 23(3) of the Act some time in the year 1954 -55. On 4th April, 1957, the applicant's estate was released from the management of the Court of Wards. On 23rd April, 1957 the applicant filed five appeals before the AAC against the assessment orders for the aforesaid five years. Along with the memo of appeals the applicant filed an affidavit explaining the delay in the matter of filing the appeals. After stating that he attained majority on 23rd June, 1956, and that his estate was restored to him on 4th April, 1957, under the orders of the Government, he further stated:
"That it was for the first time on 4th April, 1957, I came to know that certain assessments were made on me by the ITO, Kolhapur, for the asst. yrs. 1950 -51 to 1954 -55 (both inclusive) and that the Collector and Court of Wards, Kolhapur, my guardian, had failed to file appeals against those assessments within the prescribed time. I never knew anything about these assessments or failure to appeal against the same, on the part of my guardian, the Collector and Court of Wards, Kolhapur, prior to the aforesaid date, viz., the 4th day of April, 1957. That immediately after 4th April, 1957, I have taken all the necessary and adequate steps to protect my rights by preferring appeals against all the aforesaid assessments before then ?"

(2.)NO counter -affidavit was filed by the Department challenging the truth of the statements contained in the aforesaid affidavit of the applicant. At the hearing of the appeals on behalf of the Department two contentions were raised : firstly, that the applicant was not the assessee but the assessee was the Court of Wards; the appeals filed by the applicant, therefore, were incompetent, not having been filed by an assessee and, secondly, that the delay should not be condoned. The AAC accepted the first contention of the Department and held that the applicant was not the person, who was entitled to file an appeal. In upholding the second contention of the Department, the AAC has only observed the following sentence in his order :
"Thus so far as the appeal petitions are concerned, they are very much out of time and as there is no sufficient cause the late (delay) cannot be condoned."

The applicant took a second appeal before the Tribunal challenging the aforesaid findings of the AAC. A further contention appears to have been raised on behalf of the Department that no appeal lay to the Tribunal against the AAC refusal to admit the appeal on grounds of limitation. The Tribunal held that an appeal lay to the Tribunal against the AAC's refusal to admit an appeal on grounds of limitation. It held that the property of the applicant had vested in the Court of Wards, that the tax liability was on the Court of Wards under Sub -S. (1) of S. 40 of the Act, and that the assessee was the Court of Wards and not the applicant. The applicant, therefore, was incompetent to file the appeals. On the question of condonation of delay, the Tribunal observed :

"Even otherwise, S. 6(1) of the Limitation Act has no relevance because it is not applicable to 'appeals'. Therefore, the appellant had no right to file an appeal after the cessation of the disability. It has also to be observed that the appellant admittedly attained majority on 23rd June, 1956 ; therefore, it is difficult to believe his words in the affidavit that he came to know of the assessments on the 4th April, 1957, for the first time and that he never knew anything about these assessments or the guardian's failure to appeal against them prior to 4th April, 1957."
In this view of the matter the appeals were dismissed by the Tribunal.
(3.)ON an application made by the applicant, the Tribunal, after drawing up a statement of case, has referred the following six questions of law to this Court :
"(1) Whether, in the facts and circumstances of the case, the applicant was the assessee and entitled to prefer appeals before the AAC in respect of the asst. yrs. 1950 -51 to 1954 -55 ? (2) Whether, in the facts and circumstances of the case, the assessments were made under S. 40 (1) of the act ? (3) Whether, in the facts and circumstances of the case, assuming the assessments were made on the Court of Wards, the applicant is barred from preferring the appeals ? (4) Whether, in the facts and circumstances of the case, the appeals were filed in time ? (5) Whether, in the facts and circumstances of the case, there is any material for the Tribunal to reject the applicant's statement in the affidavit that he came to know about the assessments on 4th April, 1957 when the superintendence and control over his estate was removed ? (6) Whether, in the facts and circumstances of the case, the Tribunal exercised its discretion judicially in not condoning the delay ?"
Even though six questions have been referred to this Court, the questions that fall for consideration are only two -fold : in the first instance, whether the applicant is factually an assessee in the sense that the person against whom an assessment order has been made or in the alternative whether, at any rate, on the facts and in the circumstances of the case, the applicant is an assessee within the meaning of S. 30 of the Act having a right to file appeals; and, secondly, whether the Tribunal had any material before it to reject the applicant's statement in the affidavit that he (the applicant) came to know about the assessment on 4th April, 1957, when the superintendence and control over his estate was removed.


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