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TMI Blog1999 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual aspects is necessary for adjudication of the question raised in that I.T.R., which we shall quote it little later. The assessee filed its return for the assessment year 1986-87 on February 9, 1989, declaring a total income of Rs. 83,54,950. In response to the notice under section 143(2) of the Act, books of account were produced and finally the income was assessed at Rs. 1,45,06,670. The demand after adjustment of advance tax and taking into account interest payable under came to Rs. 52,91,476. The matter was challenged in appeal before the Commissioner of Income-tax (Appeals), Calicut (in short "the CIT(A)"). The assessment was completed on March 30, 1989, and the appeal filed was on April 26, 1989. Before going into the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condoning the lapse in the payment of admitted tax at the time of filing the appeal and, accordingly, admitted the appeal. The appeal was heard on the merits and was partly allowed. The Revenue preferred second appeal before the Income-tax Appellate Tribunal, Cochin Bench, Cochin (in short, "the Tribunal"). The first ground of challenge was the conclusion of the Commissioner of Income-tax (Appeals) regarding condonation of delay and admissibility of appeal. The Tribunal affirmed the conclusion of the Commissioner of Income-tax (Appeals) though it indicated different reasons also. At this juncture, it is necessary to take note of a few facts which are relevant so far as 1. T. R. No. 111 of 1998, is concerned. The application for refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is right in law in holding that to an appeal filed after April 1, 1989, the provision prior to April 1, 1989, will apply ?" The same is the subject-matter of adjudication in I. T. R. No. 174 of 1997. As indicated above, learned counsel for the assessee raised a point about the jurisdiction of the Tribunal to pass such an order in 1. T. R. No. 111 of 1998. But, we do not think it necessary to adjudicate that question. Coming back to the reference filed by the Revenue, it is to be noted that the position under section 249 before the amendment and the after amendment with effect from April 1, 1989, is as follows : "249. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,--- (a) where a return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated in. and before a decision is given, by the inferior court. A pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owdhry [1957] AIR 1957 SC 540. An appeal is a continuation of assessment proceedings. The right of appeal is a substantive right which gets crystallised when assessment proceedings are initiated. The right of appeal is a substantive right conferred on a party by the statute. The conferring of a right of appeal is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance. The right of appeal in a given case may already be available at the institution of the cause in the court of the first instance or may even be subsequently conferred. In either situation, without any distinction such right is conferred by statute (See Special Military Estates Officer v. Munivenkataramiah [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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