CHAGLA, C.J. - (1.)-
(2.)THIS reference raises a very short point as to the construction of Section 30 and 31 of the Income-tax Act and the facts necessary to be stated are that the Income-tax Officer made an assessment on the assessee on the March 16, 1946. The assessee wanted to prefer an appeal against that assessment, and the appeal was received in the office of the Appellate Assistant Commissioner, B-Range, on the June 3, 1946.
Now under section 30 a statutory right is given to the assessee to prefer an appeal against an order of assessment made by the Income-tax Officer; but a time limits is prescribed within which the appeal has to be preferred, and that time limit is thirty days. Therefore admitedly when the appeal was presented, the appeal was out of time. On that, the assessee made an application to the Appellate Assistant Commissioner for condoning the delay. The Appellate Assistant Commissioner refused to condone the delay and declined to entertain the appeal. From this order of the Appellate Assistant Commissioner an appeal was preferred to the Appellate Tribunal, and the Appellate Tribunal took the view that the order passed by the Appellate Assistant Commissioner was an order under Section 31 of the Income-tax Act and not an order under Section 309 of the Act and that an appeal lay from that order to condone the delay; and the Appellate Tribunal directed the Appellate Assistant Commissioner to hear the appeal on merits. From that order of the Appellate Tribunal this reference arises, and a question has been submitted by the Tribunal to us for decision, namely, whether the appeal before the Appellate Tribunal against the order of the Appellate Assistant Commissioner was competent ?

Now, the scheme under Section 30 and 31 of the Act is fairly clear. An assessee has a statutory right to present an appeal within thirty days without any order being required from the Appellate Assistant Commissioner for admission of that appeal. But if the time prescribed expires, then that statutory right to present an appeal goes; and an appeal can only be entertained provided it is admitted by the Appellate Assistant Commissioner after condoning the delay. Therefore before an appeal could be admitted in this case, an order from the Appellate Assistant Commissioner was requisite that the delay had been condoned, and it was only of such an order being made that the appeal could be entertained by the Appellate Assistant Commissioner. Now Section 31 of deals only with such appeals which are presented within the prescribed period or admitted after the delay has been condoned, and the procedure laid down in Section 31 with regard to the hearing of appeals only applies to such appeals. Therefore, in my opinion, when the Appellate Assistant Commissioner refused to condone the delay, there was no appeal before him which he could here and dispose of as provided under Section 31 of the Act. Section 33 then gives the right of appeal to the assessee from an order made by the Appellate Assistant Commissioner either under Section 28 or under Section 31. Therefore the Legislature did not give the right of appeal to the assessee against an order made by the Appellate Assistant Commissioner under Section 30 of the Act.

(3.)NOW Mr. Banji has contended that in refusing to condone the delay, the Appellate Assistant Commissioner has really dismissed his appeal and confirmed the order of assessment. In my opinion, that is an entirely erroneous contention because the Appellate Assistant Commissioner can only confirm an assessment and make and order of confirmation or dismissal of the appeal provided the appeal is presented within time or been admitted after condonation of delay and is heard and disposed of on merits. In this case we do not reach the stage of Section 31 at all. The appeal never came to be admitted, and no question can possibly arise of an order made by the Appellate Assistant Commissioner confirming the assessment made by the Income-tax Officer.
Mr. Banaji has relied on two judgment of the Patna High Court which, in my opinion, really have to bearing on the facts before us. One is Kunwarji Ananda v. Commissioner of Income-tax, Bihar and Orissa. There a Full Bench of the Patna High Court considered an order made by the Assistant Commissioner that the appeal did not lie because it fell under Section 23(4) of the old Income-tax Act; and the Court held that such an order fell under Section 31 of the old Act as it was an order disposing of the appeal. Now, it is important to note that in that case the appeal was admitted. It was within time, and after it was admitted, a preliminary issue was raised as to whether the appeal lay as it fell under Section 23(4) of the old Income-tax Act. It was from the order on the preliminary point that an appeal was preferred to the Commissioner, and on those facts that Court held that it was an order under Section 31 of the old Act. But as I have pointed out earlier, in the case before us there is no question of the appeal being disposed of either on the preliminary point or on merits, because the appeal was never admitted.