1961 INSC 0065
                                 Commissioner of Income-Tax, Bombay City I

                                                           Vs

                                                    Filmistan Ltd.

                                          Civil Appeal No. 451 of 1960

                                  (J. C. Shah, M. Hidayatullah, J. L. Kapur JJ)

                                                      21.02.1961

                                                     JUDGMENT

KAPUR, J. ­

This is an appeal pursuant to a certificate of the High Court of Bombay under section 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. 1,80,646-14-0 as income-tax and super-tax on June 2, 1954.
A notice of demand under section 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 installments. The
last instalment of Rs. 30,646-14-0 was payable on or before March 20, 1955. As there was a default
in the payment of this instalment the Income-tax Officer on March 31, 1955, imposed a penalty of
Rs. 3,000 under section 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

                  "Whether the appeal filed before the Appellate Assistant Commissioner on 20th
                  April, 1955, became a proper and complete appeal though barred by limitation and
                  the Appellate Assistant Commissioner should have decided the question of the
                  condonation of delay ?"

The High Court answered the question in the affirmative. The Commissioner of Income-tax has
come in appeal against this judgment.

Appeals are provided against assessments under section 30 of the Act. There is a proviso to section
30(1) in regard to the payment of taxes in the following words :

                  "Provided that no appeal shall lie against an order under subsection (1) of section 46
                  unless the tax has been paid."

The controversy between the parties revolves round the words "no appeal shall lie". The contention
which was raised before us was that these words mean that there is no right of appeal till the tax
paid and, therefore, if the tax has not been paid the memorandum of appeal cannot be filed and if
filed it is merely a waste paper. In our opinion the meaning of the words "no appeal shall lie" in the
proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal
will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of
appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is
paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no
question of limitation will arise but if the tax is paid after the period of limitation as expired it will
be taken to have been filed on the day when the tax is paid even though the memorandum of appeal
was presented
The appeal is without force and is, therefore, dismissed with costs.
Appeal dismissed.

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