COMMISSIONER OF INCOME TAX Vs. KALIPADA GHOSE

JUDGEMENT

(1.) ON the applications filed by the Revenue under S. 256(2) of the IT Act, 1961, this Court directed the Tribunal to state a case and refer the following question for opinion of the Court:

(2.) THE assessee, Kalipada Ghose, was the proprietor of New Ganguram Sweets at Bhubaneswar. The assessment years involved are 1974 75 and 1975 76. The ITO determined the total income of the assessee at Rs. 17,500 and Rs. 30,000, respectively, for these years. The assessee filed appeals on 29th Oct., 1975. The AAC considering the Taxation Laws (Amendment) Act, 1975, under which a new provision in S. 249 was introduced w.e.f 1st Oct., 1975, that no appeal shall be admitted unless at the time of filing of the appeal the admitted tax on the returned income has been paid, found that the assessee having not paid the admitted tax for the years in question, the appeals were incompetent and accordingly rejected the same in limine. The assessee, being aggrieved by the order, appealed to the Tribunal. The Tribunal on consideration of the provisions under S. 249(4) of the Act, the fact that the assessee deposited the admitted tax subsequently on 15th June, 1976, and also the fact that the provision was a new one, not well known to all concerned, directed the AAC to accept the reason given by the assessee for non payment of the admitted tax before the filing of the appeal and to admit the appeal for being disposed of on merits. The correctness and validity of this order is in question.

(3.) SEC . 253, inter alia, provides that any assessee aggrieved by an order passed by an AAC or, as the case may be, a CIT(A) under sub s. (2) of S. 131, S. 154, S. 250 or S. 271, S. 271A or S. 272A may appeal to the Tribunal against such order. Sec. 249 deals with form of appeal and limitation. Sub S. (4) thereof provides that no appeal under this Chapter shall be admitted unless at the time of filing of the appeal,