Judgment Ahmad, J. 1. THIS is a reference under s. 66, sub-s. (1), of the IT Act made by the Tribunal in connection with an order made by it on the 25th Sept., 1952, relating to an assessment for the charge year 1949-50 under s. 23, sub-s. (4), of the Act. 2. THE facts of the case, as we gather from the papers included in the paper-book, may be briefly stated as follows : THE assessment was made by the ITO by order dt. 22nd Feb., 1950, and a notice of demand under s. 29 was sent to the assessee by post and was delivered to a clerk on the 25th March, 1950. On the 19th June, 1950, the assessee received a notice under s. 46, sub-s. (5), of the Act and applied for a certified copy of any assessment order on the 15th July, 1950, which was supplied on the 16th Oct., 1950. In the meantime, without waiting for the copy, the assessee filed a petition of appeal on the 9th Aug., 1950. On the 31st Oct., 1950, the petition of appeal was returned to the assessee by post, as it was not accompanied by the demand notice. On the 31st March, 1951, the assessee wrote a letter to the AAC requesting him to expedite the hearing of the appeal that was filed by the company. THE assessee's case is that neither the original notice of demand nor the returned petition of appeal was received by the company, and that it came to know of the fact of the return of the petition of appeal when in a reply dt. 5th April, 1951, to its letter dt. 31st March, 1951, it was told that the appeal had been returned. Three days after this, the appeal was re-filed, the petition being accompanied by a certified copy of the demand notice. In the last paragraph of the petition of appeal, it was stated that, on account of the chaotic condition in the affairs of the Club, as a result of the disturbances in the City of Dacca, which caused the exodus of its staff, the appeal could not be presented in time, and it was prayed that the appeal might be admitted under s. 30, sub-s. (2), of the Act. THE assessee received a notice of the hearing of the appeal which was fixed for the 31st of May, 1951, after which it was adjourned to a date in July and again to the 28th Dec., 1951, and the final date of hearing was fixed for the 4th Jan., 1952, when both the assessee and the Department were represented and arguments were heard at some length, after which orders were reserved and passed on the 17th Jan., 1952. In the beginning of the judgment of the AAC, it was stated as follows :-- ".........the appellant admits that he received the demand notice on 25th March, 1950"; but later on, while dealing with the contention of the appellant, it was again stated-- "It was only after the service of notice under s. 46(5) that the matter came to the notice of the appellant, so the appeal was filed on 9th Aug., 1950"; and in the end a decision was recorded as follows : "..........the appellant surely came to know of the assessment made on him when the reminders were issued for payment of the tax but the appellant remained silent." "Though his objection is that he did not receive back the defective appeal but there is no evidence to show that it was not received by him. From the office record it appears that that was sent to him by post on 31st Oct., 1950." and after dealing with these matters, in conclusion an order was received that the appeal was not admitted and was struck off. Against this order, the assessee preferred an appeal to the Tribunal. The Tribunal considered only the preliminary objection that the order of the AAC being one under s. 30, sub-s. (2), of the IT Act, no appeal lay, and in the last and 5th paragraph, the Tribunal's order was expressed as follows : "In the result we hold that the present appeal is incompetent and the same is rejected in limine." 3. IT appears from the judgment of the AAC that in the first instance it was argued before him that the appeal was in time, and alternatively a prayer for condonation of the delay was made. IT was urged before us on behalf of the assessee in support of the reference that that was what had happened at the hearing of the appeal on the question of limitation on the 4th Jan., 1952. IT was urged before us on behalf of the assessee in support of the reference that that was what had happened at the hearing of the appeal on the question of limitation on the 4th Jan., 1952. IT was also contended that, on the language of s. 30, sub-s. (2), it was not the date of service, but the date of actual receipt of the notice of demand from which limitation would begin to run. This question, however, has not been referred to us for our opinion, and we refrain to express any opinion on the same which may be considered at the re-hearing of the appeal by the Tribunal, as a result of the answer we shall give to the question referred to us. The question that has been referred to us for our opinion is as follows : "Whether, in the circumstances of the case, the other of the AAC refusing to condone the delay and to admit the appeal was an order falling within s. 30(2) and, if so, whether the appeal to the Tribunal against such refusal to condone the delay was incompetent ?" 4. WE have already stated that it appears to us that the question of limitation was first heard and considered and then the question of condonation was considered by the AAC and from the statement of facts it would appear that they are similar to those in the matter of R.P. Shaha vs. The CIT (1955) 27 ITR 231 (Dacca), decided by this Court on the 21st July, 1953, wherein it was held that in such circumstances the order rejecting the appeal was one under s. 31 of the Act and was appealable. Our reply to the question referred to us, therefore, is in the negative. It appears that our decision in the case referred to above was made after the judgment of the Tribunal, but it was brought to the notice of the Tribunal before a reference was made to this Court. In the circumstances, we direct that the assessee will get Rs. 100 as costs of the reference.