Venkatarama Ayyar, J. - (1.) The appellant is a firm carrying on business at Ludhiana in the Punjab. The Income tax Officer assessed its income for 1945-1946 at Rs. 71,186, and on 17-9-1947 a notice of demand was served on it for Rs. 29,857-6-0 on account in income-tax and super-tax. The appellant preferred an appeal against the assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5-11-1947, It was then out of time by 19 days, but the appeal was registered as No. 86, and notice for hearing under S. 31, Income tax Act was issued for 13-12-1947, and after undergoing several adjournments, it was actually heard on 1-10-1948. For the year 1946-1947, the Income-tax Officer assessed the income of the firm at Rs. 1,09,883, and on 29-9-1947 a notice of demand was severed on it for Rs. 51,313-14-0 on account of income-tax and super-tax. The appellant preferred an appeal against this assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5-11-1947, and it was then 7 days out of time. It was registered as No. 89, and notice for hearing under S. 31 was issued for 24-6-1948. Eventually, it was heard along with Appeal No. 86 on 1-10-1948.
(2.) At the hearing, the Department took the objection that the appeals were presented out of time, and were therefore liable to be dismissed. The appellant prayed for condonation of the delay on the ground that following on the partition of the country the conditions were very unsettled and that curfew order had been promulgated and was in force, that the post office did not accept registered letters and that the traffic on the Grand Trunk Road was closed, and that in view of these exceptional circumstances, it had sufficient cause for not presenting the appeals in time. On 31-12-1948 the Appellate Assistant Commissioner passed orders in both the appeals, holding that there was not sufficient ground for condoning the delay, and rejecting them in limine. These orders were purported to be passed under S. 31 read along with S. 30(2) of the Act.
(3.) Against these orders, the appellant preferred appeals under S. 33 of the Act to the Appellate Tribunal, which by its order dated 4-4-1950 dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under S. 30(2) and not under S. 31 and that no appeal lay against them under S. 33. On the applications of the appellant, the Tribunal referred under S. 66(I), Income-tax Act the following question for the decision of the High Court of Punjab: "Whether in the circumstances of the case appeals lay to the Tribunal against orders of the Appellant Assistant Commissioner dismissing the appeals against the assessments for the years 1945-1946 and 1946-1947 in limine." The reference was heard by Khosla and Harnam Singh, JJ., who held following an earlier decision of that Court in - 'Dewan Chand vs. Commr. of Income-tax', AIR 1952 Punj 203 that the orders of the Appellate Assistant Commissioner were under S. 30(2) and not appealable under S. 33. Certificate to appeal to this Court against this order having been refused by the High Court, the appellant applied for and obtained leave to appeal to this Court under Art. 136 of the Constitution, and that is how the appeal comes before us.;