Madhya Pradesh High Court
Commissioner Of Income-Tax vs Smt. Nanhibai Jaiswal on 16 October, 1987
Author: N.D. Ojha
Bench: N.D. Ojha
JUDGMENT N.D. Ojha, C.J.
1. Against an order of assessment passed by the Income-tax Officer with regard to the assessment year 1976-77, an appeal was preferred by the assessee before the Commissioner of Income-tax (Appeals). An application was also presented on behalf of the assessee for exemption from the provisions of Section 249(4) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "). This application was made under the proviso to Section 249(4) of the Act which contemplates that on an application made by the appellant, the appellate authority may, for any good and sufficient reason to be recorded in writing, exempt it from the operation of the provisions of Sub-section (4).
2. The exemption was sought by the assessee with regard to the payment of the tax due on the income returned by him which was the condition precedent for admission of an appeal in view of Clause (a) of Sub-section (4) of Section 249 of the Act. The application for exemption, however, was not granted by the Commissioner of Income-tax and an order was passed on July 13, 1979, saying that the appeal was not admitted and was dismissed in limine. Against this order, an appeal was preferred by the assessee before the Income-tax Appellate Tribunal under Section 253 of the Act. This appeal was allowed by the Tribunal and the matter was remanded to the Commissioner of Income-tax to dispose of the appeal filed by the assessee afresh in the manner indicated by the Tribunal in its order. Thereafter, an application was made by the Commissioner of Income-tax before the Tribunal under Section 256(1) of the Act to refer the following two questions to this court for its opinion :
" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in entertaining the appeal filed against the order of the Commissioner of Income-tax (Appeals) refusing to exempt the assessee from the operation of the provisions of Sub-section (4) of Section 249 of the Income-tax Act?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in exempting the assessee from the operation of the provisions of Section 249(4) of the Income-tax Act ? "
3. On the said application being dismissed, the present application has been made by the Commissioner of Income-tax with a prayer that the Tribunal may be directed to draw up a statement of the case and refer to this court for its opinion the aforesaid two questions.
4. Having heard learned counsel for the parties, we are of the opinion that there is no substance in this application.
5. As regards the first question, it has been urged by learned counsel for the Department that since the order passed by the Commissioner of Income-tax (Appeals) was not an order under Section 250 of the Act but an order under Sub-section (4) of Section 249 of the Act and an appeal before the Tribunal was maintainable only against an order under Section 250 and not against an order under Section 249(4), the appeal which was entertained and allowed by the Tribunal was not maintainable. We find no substance in the submission in view of the decision of the Supreme Court in Melaram and Sons v. CIT [1956] 29 ITR 607. In that case, the Appellate Assistant Commissioner had declined to admit an appeal under Section 30(2) of the Indian Income-tax Act, 1922, on the ground that it was barred by time and no sufficient cause had been made out for condonation of delay. It was held by the Supreme Court that an order holding that there was no sufficient cause for condoning the delay under Section 30(2) of the Indian Income-tax Act, 1922, and rejecting the appeal as time-barred, was an order passed under Section 31 of that Act and an appeal lay from that order to the Appellate Tribunal. In our opinion, the principle laid down by the Supreme Court in the case of Melaram [1956] 29 ITR 607 applies with equal force to the facts of the instant case also, the only difference being that in the case of Melaram [1956] 29 ITR 607 (SC), the appeal had not been admitted on the ground that it was barred by time, whereas in the instant case, the appeal was not admitted on the ground that the amount of tax, as contemplated by Clause (a) and Section 249(4) of the Act, had not been paid. On the principle laid down by the Supreme Court in the case of Melaram [1956] 29 ITR 607, the order passed by the Commissioner of Income-tax (Appeals) in the instant case would, therefore, be an order disposing of the appeal under Section 250 of the Act and, consequently, the appeal preferred by the assessee before the Tribunal was maintainable.
6. In so far as the second question is concerned, suffice it to point out that once it has been found that the appeal before the Tribunal was maintainable, no exception can be taken to the proposition of law that keeping in view the scope of an appeal before the Tribunal, it was open to the Tribunal not only to reverse the order passed by the Commissioner of Income-tax (Appeals) but also to exercise such jurisdiction as would be exercised by the Commissioner of Income-tax under the proviso to Sub-section (4) of Section 249 of the Act.
7. It is for these reasons that we are of the opinion that there is no merit in this application which is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs.