O A O K RM ARUNACHALAM CHETTIAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE estate of late O.A.O.K. RM. Arunachalam Chettiar (who died on November 20, 1952) in the hands of his legal representative was assessed to tax for the period from April 1, 1952, to November 20, 1952, by the Income tax Officer, Karaikudi, on March 30, 1954. Notice of demand of tax due was served on the assessee on April 22, 1954. THE assessee filed an appeal against the order of assessment before the Appellate Assistant Commissioner on May 20, 1954. Unfortunately, the appeal petition was not accompanied by the notice of demand, though it was otherwise in order. On the same day, the Appellate Assistant Commissioner returned the petition to the assessee for supplying the defect, viz., filing of the notice of demand. He also stated :

(2.) THE assessee re presented the appeal with the demand notice on May 24, 1954. If that date is taken as the date of presentation of the appeal, it would be barred by limitation by three days. THE assessee's case was that the appeal should be deemed to have been presented on May 20, 1954, itself and that there was really no delay in such presentation. This was not accepted by the Appellate Assistant Commissioner who declined to admit the appeal. This order was the subject matter of an appeal to the Income tax Appellate Tribunal which regarded the order of the Appellate Assistant Commissioner as one involving the exercise of discretion in the matter of excusing the delay in presentation of the appeal, and, holding that there was no reason to interfere with such discretion dismissed the appeal. THE Tribunal did not consider the question whether at all there was a delay in presentation of the appeal. In the application under section 66(2) of the Income Tax Act, 1961 to this court, the assessee complained that his substantial case, namely, that there was no delay in the presentation of the appeal, had not been considered by the Appellate Tribunal. An affidavit was also filed in support of the application by the advocate who appeared before the Tribunal stating that he argued the question that the date of the presentation of the appeal should, in the Circumstances, be taken to be May 20, 1954. This court, by its order, dated August 10, 1956, called for the remarks of the Tribunal on the allegations contained in the affidavit of counsel. In their report, dated September 24, 1956, the Tribunal, after adverting to certain matters, stated :

(3.) THE substantial question for consideration is whether the presentation of the appeal on May 20, 1954, was invalid, as in that case it could be deemed to be presented only on May 24, 1954. Section 30 of the Income Tax Act, 1961 confers a right of appeal from an order of assessment made by the Income tax Officer to the Appellate Assistant Commissioner. Sub section (3) thereof states :