9911796707
TMI Blog1968 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act. The assessee's liability was fixed at Rs. 12,477. On January 21, 1960, a demand notice accompanied by the assessment form was issued. The notice was served on the assessee's minor brother, Suresh Kumar . The assessee had not given any specific authority to his minor brother to accept service of notice on behalf of the assessee. On January 29, 1960, ,in application was made to the Income-tax Officer raising objections against the assessment order under section 23B. On February 11, 1960, another application was moved on behalf of the assessee through his advocate asking for time for payment. That application was rejected by the Income-tax Officer. Penalty of Rs. 1,500 was imposed under section 46(1) of the Act on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessed . . . or denying his liability to be assessed under this Act . . . or objecting to any penalty imposed by an Income-tax Officer under sub-section (6) of section 44E or sub-section (1) of section 46 ... may appeal to the Appellate Assistant Commissioner ... Provided that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid . . . " The question is whether the appeals filed by the assessee before the Appellate Assistant Commissioner were liable to be dismissed under the first proviso to sub-section (1) of section 30 of the Act. Section 46 of the Act deals with the mode and time of recovery. Sub-section (1) of section 46 is : " When an assessee is in default in making a payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed a penalty upon the assessee for failure to pay the tax, because by that time the assessee had paid Rs. 13,000 only. The assessee presented an appeal from the order of penalty on February 5, 1951. Subsequently and before the appeal was heard, the Appellate Tribunal reduced the tax payable by the assessee to a sum of about Rs. 9,000. It was held by the Patna High Court that the appeal preferred by the assessee against the order imposing penalty was competent on April 24, 1952, the date of hearing of the appeal, as the amount of tax had been fully paid on that date. In that case the amount of tax that was ultimately found due against the assessee had been fully paid up by the time the appeal came up before the Appellate Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first proviso to section 30(1) of the Income-tax Act is not that no memorandum of appeal can be presented. All that the proviso means is that the appeal will not be held to be a properly filed appeal until the tax has been paid. In the present cast- the assessee did not pay tax even by the time the appeal was disposed of by the Appellate Assistant Commissioner. So the principle laid down by the Supreme Court in the case of Filmistan Ltd. does not assist the present assessee. It is true that the proceeding for service of notice upon the assessee in the instant case, was defective. But the Tribunal has found that the assessee through his duty authorised advocate applied to the Income-tax Officer for time to pay the tax. That conduct of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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