DAYA KISHAN MAHAJAN, J. - The following question of law has been referred for our opinion :
'Whether, under the facts and circumstances of the case the appeal before the Appellate Tribunal was filed by the proper person ?'
The assessee is a private limited company with its head office at Ambala Cantt. It was assessed to income-tax by the Income-tax Officer, Amritsar, 'D' Ward for the assessment year 1945-46 on the 28th of March, 1946. Against this assessment an appeal was preferred by the assessee to the Appellate Assistant Commissioner of Income-tax, Amritsar. This appeal was decided on the 21st of July 1947, and certain relief were granted to the assessee. The Commissioner of Income-tax being dissatisfied with this decision directed the Income-tax Officer, Companies Circle, New Delhi, to file an appeal before the Appellate Tribunal. This appeal came up for decision before the Tribunal on the 2nd of April, 1949, and there an argument was raised besides the arguments on merits about the maintainability of the appeal. The objection was to this effect that only the Income-tax Officer, 'D' Ward, Amirtsar was competent to file the appeal in view of the provisions of section 33(2) of the Income-tax Act (hereinafter called the Act), and as the appeal had been filed by the Income-tax Officer, Companies Circle, New Delhi, it was not competent. This objection was overruled by the Tribunal and it allowed the appeal. The assessee moved the Tribunal for statement of the case to this court both on the merits as well as on the preliminary objection. This application was rejected by the Tribunal. The assessee, therefore moved this court under section 66(2) of the Act and this court directed the question of law already referred to, to be stated for the opinion of this court.
The contention of Mr. Sibbal who appears for the assessee is based on the language of section 33(2) of the Act. Section 33(2) is in these terms :
'(2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner.'
The learned counsel contends that the appeal could only be filed by the Income-tax Officer who was seized of the assessees case. According to him, the right of appeal is a vested right in a party and therefor it is the party alone in whom that right is vested, who can appeal.
It is no doubt true that the right of appeal is a vested right but the question for determination is in whom the right of appeal is vested and not through whom the right of appeal can be exercised. So far as the hierarchy of officers under the Act is concerned the right of appeal against the decision of the Appellate Assistant Commissioner is vested in the Commissioner and he alone is to decide whether to appeal or not to appeal. Of course, if he decides to appeal he has to issue a direction to the Income-tax Officer dealing with the assessees case to appeal. Such Income-tax Officer cannot sub motto prefer an appeal. This view finds support from another fact that the period of limitation for appeal starts running from the date of the service of the order of the Appellate Assistant Commissioner on the Commissioner. The service of the order on the Income-tax Officer concerned is of no consequence. If the right of appeal was a vested right of the Income-tax Officer, then the period of limitation would run from the date of service of the order on him, and in any case the order to be appealed against should be required by law to be served on him. But this is not so. This is what 1 gather from section 33(2) of the Act. Therefore, what emerges from this discussion is that the right of appeal is a right vested in the Commissioner and he and he alone has to decide whether to appeal or not. How he exercises that right is a matter of his administrative convenience. Normally he would do so through the Income-tax Officer, who is dealing with the assessees case quo whose assessment the appeal is to be preferred. This is apparent from the provisions of section 33(2). Can it be concluded from this that he cannot appeal through another Income-tax Officer under him For this a reference to section 5(5) of the Act furnishes the answer. The relevant part of section 5(5) is in these terms :
'Inspecting Assistant Commissioners of Income-tax and Income-tax Officer shall perform their functions in respect of such persons or classes of persons or of such incomes or classes of income or in respect of such areas as the Commissioner of Income-tax may direct...'
Thus no fault can be found so far as the presentation of the present appeal to the Tribunal is concerned.
It may be mentioned that at the time the appeal was filed, the Income-tax Officer, Companies Circle, New Delhi, was seized of the assessees case and, therefore, he could file an appeal and it is immaterial that the assessment out of which the appeal arose had been dealt with by another Income-tax Officer. This would meet the objection of the assessees counsel even if we were inclined to accept his construction of section 33(2) of the Act, which contention has been held to be untenable in the earlier part of this judgment.
In this view of the matter, the question referred to us must be answered in the affirmative. The Commissioner of Income-tax will have his costs, which are assessed at Rs. 200.
INDER DEV DUA, J. - I agree with my learned brother, Mahajan, J., in the answer proposed by him and would like to add a few words of my own.
Looking at the legislative scheme or pattern of the Indian Income-tax Act the matter of appeals by the Revenue, so far as it is discernible in my view, it is the Commissioner of Income-tax, appointed under section 5 of the Act, who represents the Revenue, and, therefore, it is this officer, who defends or prosecutes the proceedings on behalf of the Department, and a fortiori presents appeals against decision by which the Revenue feels aggrieved. In section 31, which deals with the hearing of the appeals by the Appellate Assistant Commissioner it is provided in sub-section (5) that the Appellate Assistant Commissioner shall, on the conclusion of the appeal, communicate the orders passed by him to the assessee and to the Commissioner. This provision clearly postulated that it is the Commissioner who represents the Revenue in the appeals preferred by the assessee. Consistently with this position in section 33(2), the time for appealing to the Appellate Tribunal begins to run from the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner. Similarly the order passed by the Appellate Tribunal are to be communicated to the assessee and the Commissioner. Again in section 66, it is the Commissioner, who may within 60 days of the date upon which he is served with notice of the order under section 33(4), require the Appellate Tribunal to refer to the High Court any question of law arising out of such order. On refusal by the Appellate Tribunal to state the required question of law the Commissioner can move the High Court for directing the Appellate Tribunal to state the case and refer the same to the High Court. For the purpose of appealing to the Supreme Court also, it is the Commissioner who has to intimate to the High Court his intention to prefer an appeal. The foregoing discussion shown beyond doubt that it is the Commissioner, who represents the Revenue for the purpose of appeals to determine whether or not to appeal against an order and then to take necessary steps to get the appeal presented in accordance with law.
Now, once it is held that it is the Commissioner who represent the Revenue in the appellate proceeding it is obvious that the matter of directing one Income-tax Officer or another would rest with the Commissioner, unless his discretion is controlled by some mandatory and rigid provision of law. None has been pointed out to us. Sub-section (2) of section 33, to which reference has been made on behalf of the assessee, in my opinion does not lay down that, except for the Income-tax Officer can be directed by the Commissioner to appeal to the Appellate Tribunal; the words used are neither negative nor prohibitory nor exclusive. Being a provision apparently intended primarily to procure convenient expeditious or prompt conduct of the business namely presentation of the appeal it is entitled to be construed as directory with the result that departure from it would not necessarily invalidate the appeal.
Statutes conferring right of appeal are liberally interpreted so as to ensure and promote consideration of the merits of the controversy by the appellate tribunal and courts are generally speaking disinclined to favour any construction which would work forfeiture of the right of appeal on mere technicalities unless of course the statutory language complex such a result. Likewise, provisions enabling an aggrieved party to appoint an agent for presenting appeals being remedial in nature call for liberal construction so as to effectuate and further justice. Legislative intent as is firmly established is the controlling factor or primary rule in statuary construction and it has to be gathered by keeping to the forefront the purpose behind the enactment of a given provision; further to ascertain such intent, it is legitimate and indeed highly desirable to seek aid from the other relevant provisions of the statute because it is the statute read as a whole which best discloses the true intent of the lawgiver and the real legislative plan. It is in the circumstance permissible to read sub-section (2) of section 33 along with sub-section (5) of section 5, and so read, in the light of what I have just stated, I find it a little difficult to construe section 33(2) to mean that the Commissioner prohibited by law from directing any Income-tax Officer, other than the one who in fact passed the assessment order, to appeal.
With these observations, I concur that the question referred to us must be answered in the affirmative and further that the Commissioner of Income-tax will have his costs which are assessed at Rs. 200.
Question answered in the affirmative.