SANTOSH KUMAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under section 66(1) of the Indian Income-tax Act, 1922. Santosh Kumar is the assessee. He filed a return for the assessment year 1957-58. The Income-tax Officer made a provisional assessment under section 23B of the Act. The assessees liability was fixed at Rs. 12,477. On January 21, 1960, a demand notice accompanied by the assessment form was issued. The notice was served on the assessees minor brother, Suresh Kumar. The assessee had not given any specific authority to his minor brother to accept service of notice on behalf of the assessee. On January 29, 1960, an application was made to the Income-tax Officer raising objections against the assessment order under section 23B. On February 11, 1960, another application was moved on behalf of the assessee through his advocate asking for time for payment. That application was rejected by the Income-tax Officer. Penalty of Rs. 1,500 was imposed under section 46(1) of the Act on the ground that no tax had been paid by the assessee. On March 25, 1960, and on March 31, 1960, fresh orders were passed by the Income-tax Officer imposing further penalties of Rs. 3,000 each. Against these orders dated March 25, 1960, and March 31, 1960 two separate appeals were filed by the assessee before the Appellate Assistant Commissioner. They were dismissed on the ground that tax had not been paid and the appeals were incompetent. The assessee appealed to the Income-tax Appellate Tribunal, Patna Bench, Camp Allahabad. The Appellate Tribunal accepted the view taken by the Appellate Assistant Commissioner and dismissed the two appeals filed by the assessee. The assessee moved before the Tribunal two applications under sections 66(1) of the Act for reference to the court. The assessee proposed a number of question. The Tribunal agreed toot refer only one of these questions to the court. The question so referred is :

(2.) THE Appellate Assistant Commissioner held that the two appeals before him were incompetent by virtue of the first proviso to section 30 of the Act. Section 30 provides for appeal against assessment under the Act. Sub-section (1) of section 30 states :

(3.) SUB-section (1A) of section 46 provides :