DESAI C.J. - The following question has been referred to this court by the Appellate Tribunal :
'Whether on a true interpretation of the proviso to sub-section (1) of section 30 and section 31 and 33 of the Income-tax Act, the appeal preferred by the assessee before the Appellate Tribunal was not competent ?'
The facts giving rise to this question are as follows :
In respect of tax due for the assessment year 1950-51 a notice of demand to pay it was issued by the Income-tax Officer on October 31, 1954, and it was not paid within the prescribed time. Consequently on December 15, 1954, the Income-tax Officer imposed upon the assessee a penalty under section 46(1). The assessee appealed from this order on December 27, 1954, but without having paid the tax. During the pendency of the appeal, but after the expiry of limitation for the appeal, it paid the tax. On July 13, 1956, the Appellate Assistant Commissioner dismissed the appeal not on merits but on the ground that it did not lie because it had been filed without paying the tax. The assessee preferred an appeal from this judgment to the Appellate Tribunal, which dismissed the appeal on the preliminary ground that it did not lie because it was not from an order made by the Appellate Assistant Commissioner under section 31. On an application by the assessee the Tribunal referred the question set out above.
The order of the Appellate Assistant Commissioner dismissing the appeal was under section 31 and it could not be possibly under section 30. Section 30 does not refer to any orders to be passed; it only refers to the right of appeal from certain orders. Orders to be passed on appeals whether dismissing them or allowing them are to be passed by the Appellate Tribunal only under section 31(1); it is the section which deals with bearing of appeals. All orders dismissing appeals on whatever ground are orders passed under section 31. An order dismissing an appeal on the ground that the order appealed from is correct and legal or on the ground that the appeal is barred by time or on the ground that it did not lie in the court of the particular Appellate Assistant Commissioner or on the ground that it did not lie because the conditions, subject to which the right to appeal was conferred, had not been fulfilled, is an order under section 31; there is no other section under which such an order can be passed. If a document, purporting to be an appeal, is presented before an Appellate Assistant Commissioner, it is the duty of the Appellate Assistant Commissioner to hear it and decide whether he has jurisdiction over it and to decide it on merits if he finds he has jurisdiction over it. If he decides that he has no jurisdiction over it he will dismiss it but the order will still be one on the appeal and under section 31. If he dismisses the appeal on the ground that the appeal was from an order under section 46(1) but was filed without paying the tax, it is not an order passed under section 30 but an order passed on the hearing of the appeal under section 31. An appeal lies to the Appellate Tribunal from every order passed under section 31 : vide section 33(1). The appeal from the order of the Appellate Assistant Commissioner, therefore, did lie to the Appellate Tribunal and the question referred to us must be answered in the affirmative.
In Mela Ram and Sons v. Commissioner of Income-tax, it was held by the Supreme Court that when an appeal is dismissed by an Appellate Assistant Commissioner on the ground that it was barred by time, his order is an order made under section 31 and appealable to the Appellate Tribunal under section 33. An order dismissing an appeal on the ground that the requisite condition was not fulfilled, stands on the same footing as an order dismissing it on the ground that it was barred by time, so far as the question of its appealability to the Appellate Tribunal is concerned.
We, therefore, answer the reference in the affirmative and direct that a copy of this judgment, under the seal of the court and the signature of the Registrar, shall be sent to the Appellate Tribunal as required under section 66(5) of the Income-tax Act. The assessee shall get its costs assessed at Rs. 200 from the opposite party.
Reference answered in the affirmative.