1957 (9) TMI 64

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....; or whether, in the alternative, it does not affect the right of appeal, but it affects merely the hearing and final disposal of the appeal. The relevant facts are that for the assessment year 1949-50 a notice of demand under section 29 was made for the payment of Rs. 1,80,646-14-0 as income-tax and super-tax. The amount was payable on the 17th of July, 1954 ; but at the request of the assessee instalments were allowed and the last instalment of Rs. 30,646-14-0 was made payable on or before the 20th of March, 1955. There was default in payment of the last instalment and the Income-tax Officer, acting under section 46(1), imposed a penalty of Rs. 3,000 on the 31st of March, 1955. The assessee preferred an appeal to the Appellate Assistan....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... a condition precedent to the hearing and disposal of the appeal; and if by the time the date of hearing arrives the penalty has not been paid, the appeal will be liable to be dismissed. Now, Mr. Amin has urged that the words "no appeal shall lie" can mean nothing more or less than that the right of appeal is taken away unless the tax is paid. In other words, his contention is that the words "appeal shall lie" relate to the stage of entertaining the appeal or presenting the appeal and all subsequent stages, and not merely to the stage after presentation. Now, we must confess that the words "appeal shall lie" used in the context of a right of appeal in, for example, clause 15 of the Letters Patent or sections 96, 100, 101, 104 or 109, of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e other hand, it appears to us that when the Legislature had used the simple and unambigous expression "presented" in sub-section (2), if they desired that no appeal shall be presented without the tax being paid they would have used that same expression in the proviso and not some other expression. Then Mr. Amin says that, looked at from another point of view the question as to whether an appeal lies or does not lie is a question that is to be determined before an appeal is presented and it is a stage anterior to the presentation of the appeal. In one sense, Mr. Amin is right because, unless there is a right of appeal, the presentation of an appeal is a futile formality; but looked at from another point of view, the question as to whether t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....urt, there is a direct decision of the Patna High Court in Kamdar Brothers of Jharia v. Commissioner of Income-tax [1955] 27 I.T.R. 176 where that High Court held that if the tax was paid before the date of hearing, the appeal was competent although filed before the tax was actually paid. Their Lordships, in their judgment, took the same view of the interpretation of the words "appeal shall lie" in the proviso and the word "presented" in sub-section (2) as we are disposed to take, namely, that if the Legislature intended to provide in the proviso that the appeal shall not be presented, nothing could have been simpler for the Legislature than to use that expression. Their Lordships also considered the dictionary meaning of the word "lie," wh....