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TMI Blog1961 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... khabad and also manufactures utensils. For the assessment years 1945-46, 1946-47 and 1947-48 the assessee was assessed on income shown as below: Year Income Rs. Under section Date of 1945-46 65,667 23(3)/34 28-2-1950. 1946-47 25,762 do. do. 1947-48 90,343 do. do. Demand notices were sent for the tax due from the assessee but the demand not having been satisfied the following orders of penalty were passed under section 46(1) of the Act on October 1, 1951: Rs. For the year 1945-46 6,000 " " 1946-47 2,000 " " 1947-48 10,000 The assessee did not pay the tax nor did he pay the amounts of penalty as ordered by the Income-tax Officer. Instead he filed three appeals against the quantum of assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd learned counsel for the assessee as also for the department. The relevant portions of section 30 which are material for the decision of the case before us read as follows: "Any assessee objecting to...any penalty imposed by an Income-tax Officer under sub-section (6) of section 44E or sub-section (5) of section 44F or sub-section (1) of section 46.......may appeal to the Appellate Assistant Commissioner against the assessment or against such refusal or order: Provided that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid." It has already been noticed in an earlier part of this judgment that on November 2, 1951, when the appeals against the orders imposing penalty were fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an appeal, the appellant due to his conduct of not paying the tax remains disqualified from enforcing that right. No sooner the disqualification is removed the right becomes enforceable. The legislature in the proviso did not use the words "no appeal shall be entertained" but used a much more doubtful expression "no appeal shall lie". If the intention had been not to provide for the entertainment of an appeal if the tax had been paid the legislature would have said so in clear language. In the Shorter Oxford English Dictionary the word "lie" has been given the meaning "to be admissible or sustainable". It is obvious that the word "lie" is not equivalent to the word "present" o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived by an assessee and limitation for filing an appeal begins to run from that date. In our opinion if the appeal is filed within the period of limitation, even though the tax has not been paid, there would be no bar to its entertainment and on the date of hearing the Appellate Assistant Commissioner would have to determine whether the appeal is effective and any relief can be given under it by seeing whether the tax has been paid or not by that date. In our opinion the word "lie" can also be used in the sense of sustainable and we read the proviso to the effect that "no appeal shall be sustainable against an order under sub- section (1) of section 46 unless the tax has been paid". The expression "unless the tax ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be so read as to harmonise with the right of appeal and yet implement the intention of the legislature to provide for an easy recovery of the tax. It is well established that statutes pertaining to the right of appeal should be given a liberal construction in favour of the right since they are remedial and the right should not be restricted or denied unless such a construction is unavoidable and in case of doubt the same should be resolved in favour of the right of appeal (see Statutory Constructions by Crawford, 1940 edition, section 336 at pages 392-393 and the foot-note on page 693). It may also be remembered that the Income-tax Act is a fiscal statute and if there is any doubt with regard to the interpretation of section 30 the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee cannot be deemed to have been in arrears of tax. On this question we would prefer to express no opinion, but for the reasons which we have already mentioned for holding that, if the payment of the tax is made up to, or that there are no arrears on, the date of hearing of the appeals, the proviso would not stand in the way of the appeals being heard, we answer this reference in the negative and hold that the appeals before the Appellate Assistant Commissioner against the orders imposing penalty were competent and should be heard on merits. The department shall pay to the assessee costs of this reference. We fix the fee of learned counsel for the department at ₹ 200 for purpose of assessment of costs and the same amount as costs of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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