. - This is an application under Section 66 (3) of the Income Tax Act for an order of this Court requiring the Income Tax Commissioner to state a case under Section 66 (2) of the same Act. The applicant was assessed to tax by the Income Tax Officer. He preferred an appeal to the Assistant Commissioner after more than thirty days from the date of the notice of demand. The Assistant Commissioner fixed a date calling upon the assessee to show cause why the appeal should not be rejected as one filed beyond time. On the date so fixed and after hearing the assessee the appeal was rejected. The assessee applied to the Income Tax Commissioner for revision of the order of the Assistant Commissioner. His application was dismissed. He then applied to the Income Tax Commissioner for statement of case under Section 66 (2). This application was also rejected. Thereupon he filed the present application.
It has already been held by this Bench in Jot Ram Sher Singh v. Commissioner of Income-tax, that the High Court can require the Income Tax Commissioner to state a case only if the conditions required by Section 66 (2) are made out and that one of those conditions is that an order under Section 31 or Section 32 or Section 33 should have been passed in the case. It appears to us that no order under any of those sections was passed in the present instance. A reference to Sections 30 and 31 of the Income Tax Act shows that an appeal is filed under the former section and if it is admitted as an appeal presented in time, the appeal is ripe for hearing and a date is fixed for its disposal on the merits. It is only after that stage that the Assistant Commissioner functions under Section 31 and can dispose of the appeal by confirming, reducing, enhancing or annulling the assessment or setting aside the assessment and directing the Income Tax Officer to make a fresh assessment, etc. Section 30 (2) prescribes the period of limitation for appeals which according to that sub-section should :
Ordinarily be presented within thirty days of receipt of notice of the demand relating to the assessment or penalty objected to or of the date of the refusal to make a fresh assessment under Section 27, as the case may be.
The Assistant Commissioner is however authorised to admit an appeal after the expiration of that period, if he satisfied that the appellant had sufficient cause for not presenting it within that period. If the Assistant Commissioner is satisfied and admits the appeal, the order is one under Section 30 (2). If he is not satisfied that the appellant had sufficient cause, he refuses to admit the appeal, in which case no appeal can be registered and disposed of in the manner laid down by Section 31 and no order under Section 31 can be passed. It follows that action under Section 66 (2) cannot be taken if the appeal has not proceeded beyond the stage referred to in Section 30 (2), and the High Court cannot direct the Commissioner to state a case.
The learned advocate for the appellant contends that the Assistant Commissioner dismissed the appeal presented before him though it may be that it was dismissed on the ground that it was barred by limitation. Accordingly, he argues that the order is one confirming the assessment within the meaning of Section 31, Income Tax Act. We do not think that this contention is sound. An order confirming the assessment is an order which has reference to the assessment and which affirms it. Where the question of assessment is not even considered and the appeal is rejected as one barred by limitation, the order of dismissal cannot be considered to be one confirming the assessment. As already stated the order of the Assistant Commissioner in this case properly described is not an order dismissing the appeal but is an order refusing to entertain the appeal.
For the reasons stated above we hold that Section 66 (2) of the Income Tax Act does not apply, and the High Court cannot direct the Commissioner to state a case for the decision of the question of law said to arise from the order of the Assistant Commissioner. We express no opinion as to whether the question which the applicant desires to be considered by the High Court is a question of law. The application is dismissed.