KAMDAR BROTHERS OF JHARIA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this case the assessee is an HUF called Kamdar Brothers of Jharia. The assessment year is 1948 -49, and the corresponding accounting year is 2003 Samvat. The assessment was made on the assessee on the 26th Oct., 1948, but this was revised on the 30th Nov., 1949, and according to the revised assessment, a sum of Rs. 15,321 and odd was demanded from the assessee as tax by the IT authorities. The assessee preferred an appeal against the assessment to the CIT. Pending the hearing of this appeal the assessee made payments of the tax from the 28th Dec., 1949 up to the 20th March, 1950. The total amount of payment made by the assessee was Rs. 13,000. On the 10th Aug., 1950, the AAC dismissed the appeal. But the assessee took an appeal against the order of the AAC to the Tribunal. While this appeal was pending, the ITO imposed a penalty of Rs. 3,500 upon the assessee under S. 46(1) of the IT Act for failure to pay the entire amount of assessment for 1948 -49. Against this order of penalty the assessee brought an appeal to the AAC. The appeal was presented on the 5th Feb., 1951, but it was not admitted by the AAC on that date. It appears that on the 2nd May, 1951, the appeal against the original assessment was heard by the Tribunal and the appeal of the assessee was allowed in part and assessment of tax was reduced to a sum of Rs. 9,057 and odd. The appeal against the order under S. 46(1) was heard by the AAC on the 24th April, 1952. On that date the AAC took the view that the appeal was incompetent and should be struck off as the assessee had not paid the full amount of tax, namely, the amount of Rs. 15,321 at the time of presentation of the appeal. The AAC considered that under the proviso to S. 30(1). The assessee was bound to pay the full amount of tax on the 5th Feb., 1951, on which date the appeal was presented against the order under S. 46(1). The AAC conceded that if the crucial date was the 24th April, 1952, the amount of tax payable by the assessee should have been deemed to have been fully paid. For the admitted position was that the amount of the tax reduced by the Tribunal was Rs. 9,057 and odd, but the assessee had paid a sum of Rs. 13,000 between the 28th Dec., 1949, and the 20th March, 1950. The assessee preferred an appeal to the Tribunal from the order of the AAC as regards the penalty under S. 46(1).The appeal was dismissed by the Tribunal and the order of the AAC was confirmed. In these circumstances the Tribunal has submitted the following question of law for the opinion of the High Court :

(2.) ON behalf of the assessee Mr. Dutt put forward the argument that the appeal preferred before the AAC against the order under S. 46(1) was competent, since the amount of tax had been fully paid on the 24h April, 1952. The argument put forward by learned counsel was that the crucial date for paying the amount of tax was not the date of presentation of the appeal, but the date of admission. In the present case, the appeal was presented by the assessee before the AAC on the 5th Feb., 1951, but the appeal was actually taken up on the 24th April, 1952, for deciding the preliminary question whether the appeal was competent. The contention was that the amount of tax had been fully paid by the assessee before the 24th April, 1952, and, therefore, the AAC was wrong in law in holding that the appeal was not competent on that date. In our opinion, the argument put forward by Mr. Dutt is correct. The question really turns upon the construction to the first proviso to S. 30(1) of the Indian IT Act which is in the following terms :

(3.) IT has been held in that case that the section should be interpreted to mean that the High Court has no jurisdiction to entertain a second appeal except on the grounds specified in the section itself. Similarly, in O'Shea vs. O'Shea and Parnell (1890) LR 15 PD 59 the English Court of Appeal was considering the proper interpretation to be placed on S. 47 of the Judicature Act, 1873, which was in the following terms :