MALIK, J. - (1.) THIS is a reference under Section 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 Section 30, Clause (2), of the Income -tax Act or under Section 31 of the Act? (b) Whether an appeal is competent to the Tribunal from such order?'
(2.) AN application was filed under Section 66(2), 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 19 -9 -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 ofthe delay were or were not sufficient where theAppellate Assistant Commissioner had refusedto condone the delay?' The assessee is Mahabir Prasad Niranjanlal of Banaras, the assessment year being .1945 -46. On 30 -4 -1946, the Income -tax Officer passed the assess -ment order and on 11 -5 -1946, a notice of demand was served on the assessee. On 15 -5 -1946, the assessee applied for copies of the assessment order. This application, was received by the Income -tax Officer at Kanpur on 16 -5 -1946, On 19 -7 -1946, the Income -tax' Officer sent the copies by registered post but they were not delivered to the assessee till 7 -8 -1946. On 2 -9 -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.
(3.) UNDER Section 30(2), Income -tax Act, an appeal has to be filed within thirty days. The relevant, portion of the sebtion'reads : 'The appeal shall ordinarily be presented within thirty days of receipt of the notice of demand relating to the assessment.....';