Case ID: 395

Judgment:
Appeal No. 17 of 1954. Appeal by Special Leave from the Judgment and Order dated the 11th day of June 1951 of the Punjab High Court in Civil Reference No. 2 of 1951. Hardyal Hardy and Sardar Singh	 for the appellant. C. K. Daphtary	 Solicitor General of India (G. N. Joshi and R. H. Dhebar	 with him) for the 'respondent. February 21. The Judgment of the Court was delivered by VENKATARIAMA AYYAR J. The appellant is a firm carrying on business at Ludhiana in the Punjab. The Income tax Officer assessed its income for 1945 1946 at Rs. 71	186	 and on 17 9 1947 a notice of demand was served on it for Rs. 29	857 6 0 on account of income tax and super tax. The appellant preferred an 168 appeal against the assessment	 and it was actually received in the office of the Appellate Assistant Commissioner on 5 11 1947. It was then out of time by 19 days; but the appeal was registered as No. 86	 and notice for hearing under section 31 was issued for 13 12 1947	 and after undergoing several adjournments	 it was actually heard on 1 10 1948. For the year 1946 1947	 the Income tax Officer assessed the income of the firm at Rs. 1	09	883	 and on 29 9 1947 a notice of demand was served on it for Rs. 51	313 14 0 on account of income tax and super tax. The appellant preferred an appeal against this assessment	 and it was actually received in the office of the Appellate Assistant Commissioner on 5 11 1947	 and it was then 7 days out of time. It was registered as No. 89	 and notice for hearing under section 31 was issued for 24 6 1948. Eventually	 it was heard along with Appeal No. 86 on 1 10 1948. At the hearing	 the Department took the objection that the appeals were presented out of time	 and were therefore liable to be dismissed. The appellant prayed for condonation of the delay on the ground that following on the partition of the country the conditions were very unsettled	 that curfew order had been promulgated and was in force	 and that the post office did not accept registered letters	 and that the traffic on the Grand Trunk Road was closed.	 and that in view of these exceptional circumstances	 it bad sufficient cause for not presenting the appeals in time. On 31 12 1948 the Appellate Assistant Commissioner passed orders in both the appeals	 holding that there was not sufficient ground for condoning the delay	 and rejecting them in limine. These orders were purported to be passed under section 31 read along with section 30(2). Against these orders	 the appellant preferred appeals under section 33 of the Act to the Appellate Tribunal which by its order dated 4 4 1950 dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under section 30 (2) and not under section 31 and that no appeal lay against them under section 33	 On the applica 169 tions of the appellant	 the Tribunal referred under section 66(1) of the Income Tax Act the following question for the decision of the High Court of Punjab: "Whether in the circumstances of the case appeals lay to the Tribunal against orders of the Appellate Assistant Commissioner dismissing the appeals against the assessments for the years 19451946 and 1946 1947 in limine". The reference was beard by Khosla and Harnam Singh JJ.	 who held following an earlier decision of that court in Dewan Chand vs Commissioner of Incometax(1) that the orders of the Appellate Assistant Commissioner were under section 30(2) and not appealable under section 33. Certificate to appeal to this Court against this order having been refused by the High Court	 the appellant applied for and obtained leave to appeal to this Court under article 136 of the Con stitution	 and that is how the appeal comes before US. The provisions of the Act bearing on the question may now be referred to. Section 30(1) confers on the assessee a right of appeal against orders passed under the sections specified therein. Section 30(2) provides that the appeal shall ordinarily be presented within thirty days of the order of assessment	 but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant bad sufficient cause for not presenting it within that period. Section 30(3) provides that "the appeal shall be in the prescribed form and shall be verified in the prescribed manner". Section 31(1) enacts that "the Appellate Assistant Commis sioner shall fix a day and place for the hearing of the appeal	 and may from time to time adjourn the hearing". Section 31(3) specifies the orders that may be passed in appeals according as they are directed against orders passed under the one or the other of the sections of the Act which are specified in section 30(1). When the appeal is against an order of assessment under section 23 and this is what we are con (1) (1951] 20 	 170 cerned with in this appeal it is provided in section 31(3)	 clauses (a) and (b) that in disposing of the appeal the Appellate Assistant Commissioner may (a) confirm	 reduce	 enhance or annul the assessment	 or (b) set aside the assessment and direct the. Incometax Officer to make a fresh assessment after making such further enquiry as the Income tax Officer thinks fit. Section 33(1) enacts that	 "Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him". Stated succinctly	 section 30 confers a right of appeal on the assessee	 section 31 provides for the hearing and disposal of the appeal	 and section 33 confers a right of further appeal against orders passed under section 31	 Now	 on these provisions the question is whether an order dismissing an appeal presented under section 30 as out of time is one under section 30(2) or under section 31 of the Act. If it is the former	 there is no appeal provided against it; if it is the latter	 it is open to appeal under section 33. On this question	 there has been a sharp conflict of opinion among different High Courts and even among different Benches of the same High Court. The Bombay High Court has held that when an appeal is presented out of time	 and there is no order of condonation of delay under section 30(2)	 there is	 in law	 no appeal before the Appellate Assistant Commissioner	 and that an order by him rejecting the appeal does not fall within section 31 and is not appealable: Commissioner of Income tax vs Mysore Iron and Steel Works(1) and K. K. Porbunderwalla vs Commissioner of Income tax(2); but that if the appeal is admitted after an order of condonation is made under section 30(2)	 an order subsequently passed dismissing it on the ground of limitation would be one under section 31 and would be appealable under section 33 and the result will be the same even when the appeal is admitted without (1) .[1949] 	 (2) 171 any order of condonation under section 30(2): Champalal A sharam vs Commissioner of Income tax(1). The High Court of Allahabad has also taken the same view	 and held that an order refusing to condone delay and rejecting an appeal before it was admitted was not one under section 31 and was not appealable: Vide Shivnath Prasad vs Commissioner of Income tax	 Central and U. P.(3) and Municipal Board	 Agra vs Commissioner of Income tax	 U. P.( 3 ); but that ail order dismissing the appeal as time barred after it had been admitted was one under section 31 and was appeable: Mohd. Nain Mohd. Alam vs Commissioner of Income tax(1). The High Court of Punjab has held following Shivnath Prasad vs Commissioner of Incometax	 Central and U. P.(2) and Commissioner of Incometax vs Mysore Iron and Steel Works(5) that when the Appellate Assistant Commissioner declines to condone delay and rejects the appeal	 it is one under section 30(2) and not appealable. It has further held that even if the appeal bad been admitted without an order of condonation and dismissed at the hearing on the ground of limitation	 it would not be under section 31	 because the scheme of the Act contemplated that an order to be passed under that section must relate to the merits of the assessment. It is on this decision that the judgment under appeal is based It may be mentioned that the decision in Dewan Chand vs Commissioner of Income tax(6) was dissented from in a recent decision of the Punjab High Court in General Agencies vs Income tax Commissioner(7) . In Commissioner of Income tax vs Shahzadi Begum the Madras High Court has held that an order declining to excuse delay and rejecting the appeal is one under section 31	 whether it is made before the appeal is admitted or after	 and that an appeal which is filed out of time is	 nonetheless	 an appeal for purposes of section 31	 and that an order dismissing it would be appealable under section 33. In Gour Mohan (1) 	 (3) (5) (7) A.I R. 1956 Punjab 26. (2) (4) (6) (8) 172 Mullick vs Commissioner of Agricultural Income tax(1)	 the Calcutta High Court has	 after a full discussion	 come to the conclusion that an order of dismissal on the ground of limitation at whatever stage was one which fell under section 31. It is unnecessary to refer to the views expressed in decisions of other High Courts	 as the point now under discussion did not directly arise for decision therein. The question is which of these views is the correct one to adopt. We start with this that under section 33 it is only orders under section 31 that are appealable. The question therefore narrows itself to this whether an order declining to condone delay and dismissing the appeal as barred by time is an order under section 31. It will be	 if it is passed in appeal against an order of assessment	 and is one which affirms it. Now	 the conflicting views expressed by the several High Courts centre round two points: (1) when an appeal is presented out of time and there has been a refusal to condone delay under section 30(2)	 is an order rejecting it as time barred one passed in appeal; and (2) if it is	 is such an order one confirming the assessment within section 31(3)(a)? On the first point	 as already stated	 it has been held by the Bombay High Court that while an order dismissing an appeal as time barred after it is admitted is one under section 31	 a similar order passed before it is admitted is one under section 30(2). The ratio of this distinction is stated to be that in law there is no appeal unless it is presented in time	 and if presented beyond time	 unless the delay is excused. In Commissioner of Income tax vs Mysore Iron and Steel Works(2)	 Chagla	 C.J. stated the position thus: "An asseesee has a statutory right to present an appeal within thirty days without any order being required from the Appellate Assistant Commissioner for admission of that appeal. But if the time prescribed expires	 then that statutory right to present an appeal goes; and an appeal can only be entertained provided it is admitted by the Appellate Assistant Commissioner after condoning the delay. (1) (2) 173 Therefore before an appeal could be admitted in this case	 an order from the Appellate Assistant Commissioner was requisite that the delay had been condoned and it was only on such an order being made that the appeal could be entertained by the Appellate Assistant Commissioner. Now section 31 deals only with such appeals which are presented within the prescribed period or admitted after the delay has been condoned	 and the procedure laid down in section 31 with regard to the hearing of appeals only applies to such appeals. Therefore	 in my opinion	 when the Appellate Assistant Commissioner refused to condone the delay	 there was no appeal before him which he could hear and dispose of as provided under section 31 of the Act. Section 33 then gives the right of appeal to the assessee from an order made by the Appellate Assistant Commissioner either under section 28 or under section 31. Therefore the Legislature did not give the right of appeal to the assessee against an order made by the Appellate Assistant Commissioner under section 30 of the Act". Learned counsel for the appellant disputes the correctness of the last observation that an order of the Appellate Assistant comissioner refusing to condone the delay is one under section 30(2)	 and contends that the only order that could be passed under that section was one excusing delay	 and an order refusing to condone it will fall outside it	 and that such an order could only be made under section 31. We find it difficult to accede to this contention. When power is granted to an authority to be exercised at his discretion	 it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay	 he has also a discretion in appropriate cases to decline to do so. We are therefore of opinion that the refusal to excuse delay is an order under section 30(2.). But the question still remains whether the view taken in Commissioner of Income tax vs Mysore Iron 23 174 and Steel Works(1) and K. K. Porbunderwalla v Commissioner of Income tax (2) that an appeal which is filed beyond the period of limitation is	 in the eye of law	 no appeal	 unless and until there is a condonation of delay	 and that	 in consequence	 an order passed thereon cannot be held to be passed in appeal so as to fall within section 31 is right. Now	 a right of appeal is a substantive right	 and is a creature of the statute. Section 30(1) confers on the assessee a right of appeal against certain orders	 and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income tax Officer. Then	 we come to section 30(2)	 which enacts a period of limitation within which this right is to be exercised. If an appeal	 is not presented within that time	 does that cease to be an appeal as provided under section 30(1)? It is well established that rules of limitation	 pertain to the domain of adjectival law	 and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) must	 therefore	 be an appeal in the eye of law	 though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. There might be a provision in the statute that at the end of the period of limitation prescribed	 the right would be extinguished	 as for example	 section 28 of the Limitation Act; but there is none such here. On the other hand	 in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30 (2)	 the legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law. In Nagendranath Dey vs Suresh Chandra Dey(3) Sir Dinshaw Mulla construing the word ' appeal ' in the third column of article 182 of the Limitation Act observed: "There is no definition of appeal in the Civil Pro (1) (2) (3) 59 I.A. 283	 287. 175 cedure Code	 but their Lordships have no doubt that any application by a party to an appellate	 Court	 asking it to set aside or revise a decision of a subordinate Court	 is an appeal within the ordinary acceptation of the term	 and that it is no less an appeal because it is irregular or incompetent". These observations were referred to with approval and adopted by this Court in Raja Kulkarni and others vs The State of Bombay(1). In Promotho Nath Roy vs W. A. Lee(2)	 an order dismissing an application as barred by limitation after rejecting an application under section 5 of the Limitation Act to excuse the delay in presentation was held to be one "passed on appeal" within the meaning of section 109 of the Civil Procedure Code. On the principles laid down in these decisions	 it must be held that an appeal pre sented out of time is an appeal	 and an order dismissing it as time barred is one passed in appeal. Then	 the next question is whether it is an order passed under section 31 of the Act. That section is the only provision relating to the hearing and disposal of appeals	 and if an order dismissing an appeal as barred by limitation is one passed in appeal	 it must fall within section 31. And as section 33 confers a right of appeal against all orders passed under section 31	 it must also be appealable. But then	 it is contended that in an appeal against assessment the only order that could be passed under section 31 (3)(a) is one which confirms	 reduces	 enhances or annuls the assessment	 that such an order could be made only on a consideration of the merits of the appeal	 and that an order dismissing it on the ground of limitation is not within the section. That was the view taken in Dewan Chand vs Commissioner of Income tax(3). But there is practically a unanimity of opinion among all the other High Courts that to fall within the section it is not necessary that the order should expressly address itself to and decide on the merits of the assessment	 and that it is sufficient that the effect of the order is to confirm the assessment (1) [1954] S.C.R. 384	 388. (2) A.I.R. 1921 Cal. (3) 176 as when the appeal is dismissed on a preliminary point. In Commissioner of Income tax vs Shahzadi Begum(1)	 Satyanarayana Rao	 J. said: "If the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established	 it results in an affirmation of the order appealed against". In Gour Mohan Mullick vs Commissioner of Agricultural Income tax(2)	 construing sections 34	 35 and 36 of the Bengal Agricultural Income Tax Act which are in terms identical with those of sections 30	 31 and 33 of the Indian Income Tax Act	 Chakravarti	 J. observed: "I would base that view on the ground that the order	 in effect	 confirmed the assessment or	 at any rate	 disposed of the appeal and was thus an order under section 35	 because what that section really contemplates is a disposal or conclusion of the appeal and the forms of orders specified in it are not exhaustive. An appellate order may not	 directly and by itself	 confirm	 or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so	 it is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of time or both". This reasoning is also the basis of the decisions of the Bombay and Allahabad High Courts which bold that an order rejecting an appeal on the ground of limitation after it had been admitted is one under section 31	 though there is no consideration of the merits of the assessment. Thus	 in K. K. Porbunderwalla vs Commissioner of Income tax(3)	 Chagla	 C. J. observed: ``. although the Appellate Assistant Commis sioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under section 31 and the effect of that order was to confirm the assessment which bad been made by the Income tax Officer". In Special Manager of Court of Wards vs Commissioner (1) (2) (3) 177 of Income tax(1)	 the Allahabad High Court stated that the view was "possible that even though the period of limitation is prescribed under section 30 and the power to grant extension is also given in that section the power is really exercised under section 31 as the Appellate Assistant Commissioner when he decides not to extend the period of limitation may be said in a sense to have confirmed the assessment". The respondent relied on a later decision of the) 'Allahabad High Court in Mahabir Prasad Niranjanlal vs Commissioner of Income tax(2)	 wherein it was held by the learned Judges	 departing from the previous course of authorities of that court	 that an order of the Appellate Assistant Commissioner dismissing an appeal as time barred was one under section 30(2) and not under section 31	 and was therefore not appealable. This conclusion they felt themselves bound to adopt by reason of certain observations of this Court in Commissioner of Income tax	 Madras vs Mtt. section Ar. Arunachalam Chettiar(3). But when read in the context of the point that actually arose for decision in that case	 those observations lend no support to the conclusion reached by the learned Judges. There	 the facts were that an appeal was preferred by the assessee under section 30(1) against an order of the Income tax Officer	 and that was dismissed by the Appellate Assistant Commissioner on 19 11 1945 as incompetent. No appeal was filed against this order	 and it became final. But acting on a suggestion made in the order dated 19 11 1945	 the assessee filed an original miscellaneous application before the Appellate Tribunal for relief	 and by its order dated 20 2 1946 the Tribunal set aside the findings of the Income tax Officer	 and directed him to make a fresh computation. Then	 on the application of the Commissioner of Income tax	 the Tribunal referred to the High Court under section 66(1) of the Income tax Act the following question: "Whether in the facts and circumstances of the case	 the order of the Bench dated 20th February	 (1) 	 212. (2 ) (3) ; 474 475	 178 1946 in the miscellaneous application is an approoriate order and is legally valid and passed within the jurisdiction and binding on the Income tax Officer". The High Court declined to answer this reference on the ground that the order of the Tribunal was not one passed in an appeal under section 33(1)	 and that In consequence	 the reference under section 66(1) was itself incompetent. The correctness of this decision was challenged on appeal to this Court	 and in affirm ing it	 this Court observed: . . when on 19th November 1945	 the Appellate Assistant Commissioner declined to admit the appeal	 the assessee did not prefer any appeal but only made a miscellaneous application before the Appellate Tribunal. There is no provision in the Act permitting such an application. Indeed	 in the statement of the case the Appellate Tribunal states that in entertaining that application and correcting the error of the Income tax Officer it acted in exercise of what it regarded as its inherent powers. There being no appeal under section 33(1) and the order having been made in exercise of its supposed inherent jurisdiction	 the order cannot possibly be regarded as one under section 33(4) and there being no order under section 33(4) there could be no reference under section 66(1) or (2)	 and the appellate Court properly refused to entertain it". There is	 of course	 nothing in the decision itself which bears on the point now under discussion. But certain observations occurring at pages 474 and 475 were referred to by the learned Judges as leading to the conclusion that an order dismissing an appeal as barred by time would fall undersection 3O(2). Now	 those observations came to be made by way of answer to a new contention put forward by the learned	 Attorney General in support of the appeal. That contention was that the miscellaneous application presented to the Tribunal might be treated as an appeal against the order dated 19 11 1945	 in which case the order passed thereon on 20 2 1946 would fall under section 33(4) and the reference would be com 179 petent. 'In disagreeing with this contention	 this Court observed that the appeal to the Appellate Assistant Commissioner was incompetent under section 30(1)	 that even if it was competent	 the order dated 19 11 1945 was not one contemplated by section 31	 and there could be no appeal against such an order under section 33(1). Now	 it should be noticed that the question actually referred under section 66(1) was the correctness and legality of the order passed in a miscellaneous application and not of any order made in an appeal preferred under section 33(1). In this context	 the point sought to be raised by the learned	 Attorney General did not arise at all for decision	 and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal	 much less as a decision that an order dismissing an appeal as barred by limitation is one under section 30(2). Accordingly	 the question whether an order dismissing an appeal as barred by limitation falls under section 30(2) or section 31 remains unaffected by the observations in Commis sioner of Income tax	 Madras vs Mtt. section Ar. Aruna chalam Chettiar(1). Then again	 under the provisions of the Act	 limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner". If the Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground	 the order must be one made under section 31	 since section 30(3) makes no provision for such an order	 as does section 30(2) in the case of limitation. All the orders under section 31 being appealable under section 33	 the order of dismissal for noncompliance with section 30(3) must also be appealable	 and it was so decided in Maharani Gyan Manjari Kuari vs Commissioner of Income tax(2) . How is this view to be reconciled with the contention that section 31 contemplates only orders on the (1) ; (2) 180 merits of the assessment and not on preliminary issues? Vide also the decision in Kunwarji Ananda vs Commissioner of Income tax(1)	 which was followed in Maharani Gyan Manjari Kuari vs Commissioner of Income tax(2)	 and in Ramnarayana Das Mandal vs Commissioner of Income tax(3). There is thus abundant authority for the position that section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues	 such as limitation and the like. The learned Solicitor General sought to get over these decisions by taking up the position that section 31(3) (a) construed in its literal and ordinary sense	 conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment	 that it was not therefore open to him to entertain any question which did not directly relate to such merits	 and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation	 and dispose of the appeal on the 	basis of the finding on that issue. He conceded that this contention would run counter to numerous authorities	 but argued that they were all wrong. Having given due consideration to this contention	 we are of opinion that it is not well founded. Taking the plea of limitation which is what we are concerned with in this appeal when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor	 the respondent acquires a valuable right	 of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back. And when such an order is passed ex partehe has a right to challenge its correctness at the bearing of the appeal. That is the position under the general law (vide Krishnasami . Panikondar vs Ramasami Chettiar(4)	 and there is nothing in the provisions of the Income Tax Act	 which enacts a different principle. (1) I L.R. 11 Patna 187; A.I.R. 1931 Patna 306; 5 I.T.C. 417. (2) [1944]12 I.T.R. 59. (3) (4) Mad. 412; 45 I.A. 25. 181 Therefore	 if an appeal is admitted without the fact of delay in presentation having been noticed	 clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before. the Income tax Tribunal	 as appears from the decisions cited before us	 and that	 in our opinion	 is right. Similar considerations would apply to other objections of a preliminary character	 such as one based on section 30	 sub section (3). We should be slow to adopt a construction which deprives parties of valuable rights. We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal	 and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the bearing of the appeal on the merits of the assessment only. In this view	 the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under section 31 and would be open to appeal	 and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted. The question referred must accordingly be answered in the affirmative. This appeal will therefore be allowed	 and the order of the court below set aside. The appellant will have his costs here and in the court below.

Summary:
The appellant firm filed appeals against orders assessing it to income tax and super tax for the years 1945 1946 and 1946 1947 beyond the time prescribed by section 30(2) of the Income tax Act. The appeals were numbered	 and notices were issued for their hearing under section 31. At the hearing of the appeals before the Appellate Assistant Commissioner	 the Department took the objection that the appeals were barred by time. The appellant prayed for condonation of delay	 but that was refused	 and the appeals were dismissed as time barred. The appellant then preferred appeals against the orders of dismissal to the Tribunal under section 33 of the Act	 and the Tribunal dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under section 30(2) and not under section 31 of the Act and that no appeal lay against them under section 33 of the Act. On a reference under section 66(1) of the Act the High Court held that the orders of the Appellate Assistant Commissioner were made under section 30(2) and were not appealable under section 33 of the Act. On appeal by special leave to the Supreme Court the question for determination was whether an order dismissing an appeal presented under section 30 as out of time was one under section 30(2) or under section 31 of the Act because if it was the former there was no appeal provided against it; if it was the latter it was open to appeal under section 33. Held that the orders of the Appellate Assistant Commissioner fell within section 31. A right of appeal is a substantive right and is a creature of the statute. section 30(1) confers on the assessee a right of appeal against certain orders and an order of assessment under section 23 is one of them. The appellant had therefore a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer. 167 An appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in appeal. Section 31 is the only provision relating to the hearing and disposal of appeals and if an order dismissing an appeal as barred by limitation as in the present case is one passed in appeal it must fall within section 31 and as section 33 confers a right of appeal against all orders passed under section 31	 it must also be appealable. To fall within section 31 it is not necessary that the order should expressly address itself to and decide on the merits of the assessment and it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point. An order rejecting an appeal on the	 ground of limitation after it had been admitted is one under section 31	 though there is no consideration of the merits of the assessment. Held therefore that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under section 31 and would be open to appeal	 and it would make no difference in the position whether the orders of dismissal were made before or after the appeals were admitted. Commissioner of Income tax	 Madras vs Mtt. `r. section Ar. Arunachalam Chettiar	 ([1953] S.C.R. 463)	 explained. Case law discussed.