# BOMBAY v. M/s. FILMISTAN LTD

- **Citation:** [1961] 3 S.C.R. 893
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** CIVIL APPELLATE JURI8DIUTIO:\ : Civil Appeal No. 451 of 1960
- **Bench:** J. L. l(APUR, M. Hidayatullah, J. c:SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bombay-v-m-s-filmistan-ltd-1941
- **Pages:** 4

## Headnote

focome-tax-J'cnalty for failure to pay tax-Appeal within time
-Tax due paid after the period of Limitation--Appral if barredIndian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2),
46(I).
Against an order imposing penalty under s. 46(1) of the
Indian Income-tax Act on account of failure to pay an instalment
of Income-tax, an appeal was preferred. Though the memorandum of appeal was presented within the period of limitation, the
tax was paid after the period of limitation prescribed for
presenting the appeal had expired.
Held, that the expression "t-<o appeal shall lie" in the
proviso to s. 30(2) of the Indian Income-tax Act means that the
appeal cannot be held to be properly filed until the tax is paid,
and not that no memorandum of appeal may be presented.
The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2)
...of the Act is that the appeal will be deemed to be filed on the
date when the tax due is paid and the question will then have
to be decided whether there is sufficient cause for condonation
of delay.
CIVIL
APPELLATE
JURI8DIUTIO:\ :
Civil Appeal
No. 451 of 1960.
Appeal from the judgment and or<lcr dated September 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8
of 1957.
/{. N. Rujar;opol s,1,1n: a11d
/J. Unpta. fu,.
the
appell<tnt.
Hidayatullah j.
FebYuary 21,
z96I
Commissioner of
lncome·la~.
Bombay
v.
894
SUPREME COURT REPOUTS
'
[1961]
Bishan Narain, S. N . .Andley, J. B. Dadaehanji,
Rqmeshwar Nath and P. L. Vohra, for the respondent.
1961. February 21. The Judgment of the Court was
delivered by
M/s.Filmistan°Ltd.
KAPUR, J.-This iR an appeal pursuant to a certiKapur].
ficate of the High Court of Bombay under s. 66A(2) 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. l,80,6i6/14/-
as income-tax and·super-tax on June 2, 1954. A notice
of demand under s. 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. 30,646/14/- was payable on or before March 20,
1955. As there was a default in the payment of this
instalment the Income-tax Officer ou March 31, 1955
imposed a penalty of Rs. 3,000/ under s. 46(1) 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 s. 30(1)
of the Act and is not taken away by s. 30(2) of th~
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 an<l it was then for the Appellate
Assistant Commissioner to decide whether it was a fit
case for extension of time and con<lonation 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
3 S.C.R.
SUPREME COURT B,EPO.RTS
895
of Income-tax, who is the appellant before us, the
'96'
Tribunal stated the following question of law to the Commi,,ioii" of
' High Court:-
/,,come-to.•
"Whether the appeal filed before the Appellate
Bombay
Assistant Commissioner Oil 20th April, 1955, became
. v;.
a proper and complete appeal though barred by M/s.FilmistanLld.
limitation and the Appellate Assistant Commissioner
I<;;,,: J.
s

## Text

,,
3 S.U.R.
SUl'RElllE COCRT HEPOHTS
893
Harida5 .J!Ondal
v.
favour of borrowers an'.! against rapacious moneylenders. I find myself in such complete agreement
with the judgment impugned, that I do not find it
necessary to cover the same ground.
Anath ,,Vath 1.llittra
I .would, therefore, dismiss the appeal with costs.
BY COURT.-In view of the majority judgment of
the Court, this appeal will be allowed and Mittra's
Suit No. 105 of 1947 dismissed with costs throughout.
THE COMMISSIONER OF INCOME-TAX,
BOMBAY
v.
M/s. FILMISTAN LTD.
(J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)
focome-tax-J'cnalty for failure to pay tax-Appeal within time
-Tax due paid after the period of Limitation--Appral if barredIndian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2),
46(I).
Against an order imposing penalty under s. 46(1) of the
Indian Income-tax Act on account of failure to pay an instalment
of Income-tax, an appeal was preferred. Though the memorandum of appeal was presented within the period of limitation, the
tax was paid after the period of limitation prescribed for
presenting the appeal had expired.
Held, that the expression "t-<o appeal shall lie" in the
proviso to s. 30(2) of the Indian Income-tax Act means that the
appeal cannot be held to be properly filed until the tax is paid,
and not that no memorandum of appeal may be presented.
The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2)
...of the Act is that the appeal will be deemed to be filed on the
date when the tax due is paid and the question will then have
to be decided whether there is sufficient cause for condonation
of delay.
CIVIL
APPELLATE
JURI8DIUTIO:\ :
Civil Appeal
No. 451 of 1960.
Appeal from the judgment and or<lcr dated September 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8
of 1957.
/{. N. Rujar;opol s,1,1n: a11d
/J. Unpta. fu,.
the
appell<tnt.
Hidayatullah j.
FebYuary 21,
z96I
Commissioner of
lncome·la~.
Bombay
v.
894
SUPREME COURT REPOUTS
'
[1961]
Bishan Narain, S. N . .Andley, J. B. Dadaehanji,
Rqmeshwar Nath and P. L. Vohra, for the respondent.
1961. February 21. The Judgment of the Court was
delivered by
M/s.Filmistan°Ltd.
KAPUR, J.-This iR an appeal pursuant to a certiKapur].
ficate of the High Court of Bombay under s. 66A(2) 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. l,80,6i6/14/-
as income-tax and·super-tax on June 2, 1954. A notice
of demand under s. 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. 30,646/14/- was payable on or before March 20,
1955. As there was a default in the payment of this
instalment the Income-tax Officer ou March 31, 1955
imposed a penalty of Rs. 3,000/ under s. 46(1) 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 s. 30(1)
of the Act and is not taken away by s. 30(2) of th~
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 an<l it was then for the Appellate
Assistant Commissioner to decide whether it was a fit
case for extension of time and con<lonation 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
3 S.C.R.
SUPREME COURT B,EPO.RTS
895
of Income-tax, who is the appellant before us, the
'96'
Tribunal stated the following question of law to the Commi,,ioii" of
' High Court:-
/,,come-to.•
"Whether the appeal filed before the Appellate
Bombay
Assistant Commissioner Oil 20th April, 1955, became
. v;.
a proper and complete appeal though barred by M/s.FilmistanLld.
limitation and the Appellate Assistant Commissioner
I<;;,,: J.
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 n.gainst this judgment ..
Appeals are provided against assessments under
s. 30 of the Act. There is a proviso to .s. 30(1) in
regard to the payment of taxes in the following
words:
" Provider! 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, i.e.,
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 pa.id
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 condona.tion of delay
and that is exactly what the Tribunal had ordered
896
SUPHEME COURT REPORTS
[1961]
1961
and that in our opinion is the effect of the proviso to
Commissio"" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is
Income-tax,
unnecessary therefore to refer to the two cases referred
Bombay
to by the High Court, i.e., Raja of Venkatagiri v. Com·
. •·.
missioner of Income-tax (1) and Kamdar Brothers v. Con,
M/s.F•lmistanLtd.missioner of Income-tax(').
Ka-;::; J.
The appeal is without force and is therefore dismissed with costs.
F~bruary 2I.
Appeal dismissed.
DEVIDAS AND OTHERS
v.
SHRISHAILAPPA AND OTHERS.
(J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)
Mortgage-Non-joinder of parties-Proper, but not necessary,
party added beyond limitatior>-Suit instituted on behalf of joint
family-Plaintiff not described as manager in the plaint-M ainlainability of suit-Indian Limitation Act, z908 (9 of I908), s. zz.
The manager of an undivided Hindu family consisting of
himself, his brother and their step-mother •.. instituted a suit for
recovery of the amount due under a mortgage belonging to the
family.
The step-mother who was interested in the mortgagee
right was not made a party to the suit. Though the manager
(the first plaintiff) did not describe himself as the manager in the
plaint, the allegations in the plaint showed that the suit was filed
on behalf of the joint family. No objection as to non-joinder was
raised in the trial court, but when the appeal was pending in the
High Court the step-mother was added as a party on her application .. The contesting defendants pleaded that as all persons
having an interest in the mortgage security were not joined as
parties within the period of limitation prescribed for a suit to
enforce the mortgage, and the first plaintiff did not, in any Gase,
purport to institute the suit in his capacity as the manager, the
suit must fail.
Held: (I) that the failure to join a per.son who is a proper
but not a necessary party does not affect the maintainability of
the suit nor does it invite the application of s. 22 of the Indian
Limitation Act, 1908 ;
(2) that the question whether a suit was instituted by the
manager of an undivided Hindu family in his personal capacity
or as representing the family depends upon the circumstances of
each case and that the failure of the plaintiff to describe himself
as the manager in the plaint is not decisive of the question.
(1) (1955) 28 l.T.R. 189
(2) (1955127 l.T.R. 176,