LexTHE COMMISSIONER OF INCOME-TAX, BOMBAY versus M/S. FILMISTAN LTD.
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3 S.U.R.
SUl'RElllE COCRT HEPOHTS
893
Harida5 .J!Ondal
v.
favour of borrowers an'.! against rapacious money-
lenders. I find myself in such complete agreement
with the judgment impugned, that I do not find it
necessary to cover the same ground.
Anath ,,Vath 1.llittra
I .would, therefore, dismiss the appeal with costs.
BY COURT.-In view of the majority judgment of
the Court, this appeal will be allowed and Mittra's
Suit No. 105 of 1947 dismissed with costs throughout.
THE COMMISSIONER OF INCOME-TAX,
BOMBAY
v.
M/s. FILMISTAN LTD.
(J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)
focome-tax-J'cnalty for failure to pay tax-Appeal within time
-Tax due paid after the period of Limitation--Appral if barred-
Indian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2),
46(I).
Against an order imposing penalty under s. 46(1) of the
Indian Income-tax Act on account of failure to pay an instalment
of Income-tax, an appeal was preferred. Though the memoran-
dum of appeal was presented within the period of limitation, the
tax was paid after the period of limitation prescribed for
presenting the appeal had expired.
Held, that the expression "t-<o appeal shall lie" in the
proviso to s. 30(2) of the Indian Income-tax Act means that the
appeal cannot be held to be properly filed until the tax is paid,
and not that no memorandum of appeal may be presented.
The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2)
...of the Act is that the appeal will be deemed to be filed on the
date when the tax due is paid and the question will then have
to be decided whether there is sufficient cause for condonation
of delay.
CIVIL
APPELLATE
JURI8DIUTIO:\ :
Civil Appeal
No. 451 of 1960.
Appeal from the judgment and or<lcr dated Septem-
ber 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8
of 1957.
/{. N. Rujar;opol s,1,1n: a11d
/J. Unpta. fu,.
the
appell<tnt.
Hidayatullah j.
FebYuary 21,
z96I
Commissioner of
lncome·la~.
Bombay
v.
894
SUPREME COURT REPOUTS
'
[1961]
Bishan Narain, S. N . .Andley, J. B. Dadaehanji,
Rqmeshwar Nath and P. L. Vohra, for the respondent.
1961. February 21. The Judgment of the Court was
delivered by
M/s.Filmistan°Ltd.
KAPUR, J.-This iR an appeal pursuant to a certi-
Kapur].
ficate of the High Court of Bombay under s. 66A(2) of
the Indian Income-tax Act (hereinafter called the
" Act").
For the year of assessment 1949-50 the
respondent was assessed to a sum of Rs. l,80,6i6/14/-
as income-tax and·super-tax on June 2, 1954. A notice
of demand under s. 29 of the Act was served on the
respondent to pay that amount on or before July 17,
1954. On his application the respondent was allowed
to pay by instalments. .. The last · instalment of
Rs. 30,646/14/- was payable on or before March 20,
1955. As there was a default in the payment of this
instalment the Income-tax Officer ou March 31, 1955
imposed a penalty of Rs. 3,000/ under s. 46(1) of the
Act. On April 20, 1955 the respondent filed an appeal
to the Appellate Assistant Commissioner but by that
date the last instalment had not been paid and it was
paid on May 16, 1955. The Income-tax Officer raised
a. preliminary objection before the Appellate Assistant
Commissioner that the appeal was not competent be-
cause the last instalment of the tax had not been paid.
This was upheld by the Appellate Assistant Commis-
sioner. Against this· order the respondent took an
appeal to the Income-tax Appellate Tribunal which
held that the right of appeal was conferred by s. 30(1)
of the Act and is not taken away by s. 30(2) of th~
Act, only the remedy is barred. It further held that
as the right had not been destroyed the appeal became
good appeal as soon as the assessee paid the arrears of
tax and the only effect of the payment on May 16,
1955, was that the appeal shall be taken to have been
preferred before the Appellate Assistant Commissioner
on that date an<l it was then for the Appellate
Assistant Commissioner to decide whether it was a fit
case for extension of time and con<lonation of delay.
The Tribunal therefore directed the.Appellate Assis-
tant Commissioner to dispose of the appeal in accord-
ance with law. At the instance of the Commissioner
3 S.C.R.
SUPREME COURT B,EPO.RTS
895
of Income-tax, who is the appellant before us, the
'96'
Tribunal stated the following question of law to the Commi,,ioii" of
' High Court:-
/,,come-to.•
"Whether the appeal filed before Excerpt shown. Read the full judgment & AI analysis in Lexace.