MESSRS MELA RAM & SONS versus THE COMMISSIONER OF INCOME-TAX, PUNJAB

Citation: [1956] 1 S.C.R. 166 · Decided: 21-02-1956 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

1956 
February 21 
166 
SUPREME COURT REPORTS 
(1956] 
MESSRS MELA RAM & SONS 
v. 
THE COMMISSIONER OF INCOME-TAX, 
PUNJAB. 
[S. R. DAS, C.J., BHAGWATI and VENKATARAMA 
AYXAR JJ.) 
Indian Income Tax Act, 1922 (XI of 1922), ss. 28, 80(1)(2), 81, 
83-Assessment of Income-tax-Notice of demand-Appeal against 
assessmenf,-Received in Appellate Assistant Commi!sioner's Office out 
of time-Prayer for condonation of delay rejected-Order of Assistant 
Oomm.issioner dismissing an appeal as out of ti~-Whether one 
under s. 30( 2) or under s. 81 of the Act-Whether appeal competent 
therefrom. 
The appellant firm filed appeals against orders assessing it to 
income-tax and super-tax for the years 1945·1946 and 1946·1947 
beyond the time prescribed by s. 30(2) of the Income-tax Act. 
The 
appeals were numbered, and notices were issued for their hearing 
under s. 31. 
At the hearing of the appeals before the Appellate 
Assistant Commissioner, the Department took the objection that the 
appeals were barred by time. The appellant prayed for condonation 
of delay, but that was refused, and the appeals were dismissed as 
time-barred. The appellant then preferred appeals against the orders 
of dismissal to the Tribunal under s. 33 of the Act, and the Tribunal 
dismissed them on the ground that the orders of the Assistant Com· 
missioner were in substance passed under s. 30(2) and not under s. 
31 of the Act and that no appeal lay against them under s. 33 of the 
Act. 
On a reference under s. 66(1) of the Act the High Court held 
that the orders of the Appellate Assistant Commissioner were made 
under s. 30(2) and were not appealable under s. 33 of the Act. 
On appeal by special leave to the Supreme Court the question 
for determination was whether an order dismissing an appeal pre~ 
sented under s. 30 as out of time was one nuder s. 30(2) or under s. 
31 of the Act because if it was the former there was no appeal pro· 
vided against it; if it was the latter it was open to appeal under 
s. 33. 
Held that the orders of the Appellate Assistant Commissioner 
fell within s. 31. 
A right of appeal is a substantive right and is a creature of the 
statute. S. 30(1) confers on the assessee a right of appeal against 
certain orders and an order of assessment under s. 23 is one of them. 
The oppel!ant had therefore a substantive right under s. 30(1) to 
prefer appeals against orders of assessment made by the Income Tax 
Oflicer. 
' 
S.C.R. 
SUPREME COURT REPORTS 
167 
An appeal presented out of time is 1m appeal and an order dis-
missing it as time-barred is one passed in appeal. 
Section 31 is the only provision relating· to the hearing and dis· 
posal of appeals and if an order dismissing an appeal as barred by 
limitation as in the present case is one passed in appeal it must fall 
within s. 31 and as s. 33 confers a right of appeal against all orders 
passed under s. 31, it must also be appealable. 
To fall within s. 31 it is not necessary that the order should 
expressly address itself to and decide on the merits of the assessment 
and it is sufficient that the effect of the order is to confirm the assess-
ment as when the appeal is dismissed on a preliminary point. 
An order rejecting an appeal on the ground of limitation after 
it had been admitted is one under s. 31, though there is no consi-
deration of the merits of the assessment. 
Held therefore that the orders of the Appellate Assistant Com-
missioner holding that there were no sufficient reasons for excusing 
the delay and rejecting the appeals as time-barred would be orders 
passed under s. 31 and would be open to appeal, and it would make 
no difference in the position whether the orders of dismissal were 
made before or after the appeals were admitted. 
Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Aruna-
chalam Ohettiar, ([1953] S.C.R. 463), explained. 
Case-law discussed. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
17of1954. 
Appeal by Special Leave from the Judgment and 
Order dated the 11th day of June 1951 of the Punjab 
High Court in Civil Reference No. 2of1951. 
Hardyal Hardy and Sardar Singh, for the ap-
pellant. 
0. K. Daphtary, Solicitor-General of India (G. N. 
Joshi and R. H. Dhebar, with him) for the respon-
dent. 
· 
1956. February 21. 
The Judgment of the Court 
was delivered by 
VENKATAr.AMA AYYAR J.--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

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