Appeal No 451 of 1960
Appeal from the judgment and order dated September 18 1957 of the Bombay High Court in ITR No 8 of 1957
K N Rajagopal Sastri and D Gupta for the appellant
894 Bishan Narain section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondent
February 21
The Judgment of the Court was delivered by KAPUR J
This is an appeal pursuant to a certificate of the High Court of Bombay under section 66A2 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 18064614 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 instalments
The last instalment of Rs 3064614 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 3000 under section 461 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 appeal was not competent because the last instalment of the tax had not been paid
This was upheld by the Appellate Assistant Commissioner
Against this order the respondent took an appeal to the Income tax Appellate Tribunal which held that the right of appeal was conferred by section 301 of the Act and is not taken away by section 302 of the Act only the remedy is barred
It further held that as the right had not been destroyed the appeal became good appeal as soon as the assessee paid the arrears of tax and the only effect of the payment on May 16 1955 was that the appeal shall be taken to have been preferred before the Appellate Assistant Commissioner on that date and it was then for the Appellate Assistant Commissioner to decide whether it was a fit case for extension of time and condonation of delay
The Tribunal therefore directed the
Appellate Assistant Commissioner to dispose of the appeal in accordance with law
At the instance of the Commissioner 895 of Income tax who is
the appellant before us the Tribunal stated the following question of law to the High Court  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 301 in regard to the payment of taxes in the following Words  Provided that no appeal shall lie against an order under sub section 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 is 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 ie
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 has 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 earlier and within the period of limitation
 The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered 896 and that in our opinion is the effect of the proviso to section 301 read with sub section
2 of section 30 of the Act
It is unnecessary therefore to refer to the two cases referred to by the High Court ie Raja of Venkatagiri vs Commissioner of Income tax 1 and Kamdar Brothers vs Commissioner of Income tax 2
The appeal is without force and is therefore dismissed with costs
Appeal dismissed


Summary:
The question was whether the defendant was entitled to raise a grievance and contest the valuation of the properties in dispute as if it were a matter in issue between the plaintiff and himself and could seek to invoke the High Court in its revisional jurisdiction against the order adjudging court fees payable on the plaint
Held that the Court Fees Act is enacted to collect revenue and not to be used as a technical weapon by the defendant for obstructing the progress of the suit by approaching the High Court in its revisional jurisdiction against the order determining and adjudging court fees payable on the plaint
That section 122 of the madras Court Fees Act 1955 only enabled the defendant to assist the court in arriving at a just decision on the question of court fees payable on the plaint
That in the instant case the High Court grievously erred in entertaining revision application on the question of court fees at the instance of the defendant when no question of jurisdiction was involved