1. This is a reference under Section 66(2), Income-tax Act by the Calcutta Bench of the Income-tax Appellate Tribunal under a direction of this Court of the following question of law:
'Whether in the facts and circumstances of the case any appeal lay to the Appellate Tribunal under Section 33 of the Indian Income-tax Act from an order of the Appellate Assistant Commissioner of Income-tax passed under Section 30(2) of the Indian Income-tax Act declining to admit a time-barred appeal.'
2. In the statement of the case submitted the Tribunal has said that at the time the appeal was being argued before it, the point that no appeal lay was not taken on behalf of the Department at all. It appears from a reference to the appellate order passed at the time that it contains no reference to any contention that the appeal was incompetent. The present reference, however, was made because this Court directed the Tribunal to make a reference under Section 66(2) of the Act and, therefore, on the principle we have always followed we are bound to answer the question, whether or not we ourselves consider it to arise out of the appellate order of the Tribunal.
3. As I have said, even in the present statement of the case, the Tribunal has repeated the statement that no argument regarding the appeal being incompetent was advanced at the time the appeal was heard, and it is stated in paragraph 6 of the present statement of case that both parties 'have accepted the facts stated above.' Mr. Meyer informed us that since this statement of facts had been settled by the Appellate Tribunal, the Departmental representative had sent a letter of protest to the effect that he had not accepted the statement that the question of the maintainability of the appeal had not been argued at the hearing. But were it necessary to deal with the question on the merits, we would be bound to proceed on the statement contained in the statement of the case.
4. As I have stated, it is not open to us now to consider whether or not the question does ariseout of the appellate order. That is one reason why, so far as we are concerned, the question whether the point of the competency of the appeal was or was not argued at the hearing of the appeal is immaterial. The other reason is that Mr. Meyer concedes that the point which has been referred is covered by a decision of Mr. Justice Bachawat and myself in -- 'Gour Mohan Mullick v. Commr. of Agricutural Income-tax, West Bengal : 22ITR131(Cal) . Mr. Meyer submits that as the point is covered by that decision, he does not wish to advance any arguments to us. I invited him to do so, if he thought that he might reasonably ask us to reconsider the view taken in that judgment, but Mr. Meyer said that he did not propose to address us. I must add, however, that beyond stating that the point is covered by that previous decision and that he did not wish to address us on it or on the previous judgment, Mr. Meyer did not concede that the question had been rightly decided in the previous case.
5. We see no reason to take a view differentfrom the view taken in the earlier decision andMr. Meyer has not even asked us to do so, farless given any reasons. The question referredmust, therefore, be answered in the affirmative.
6. As there is no appearance on behalf of the respondent, there will be no order for costs.
7. I agree.