JUDGMENT
Pasayat, CJ.
Though in IT Reference No. III of 1998, a question of vital importance has been raised about jurisdiction of the Tribunal to rceconsider a question of limitation, while exercising powers under section 250 of the Income Tax Act, 1961 Income Tax Act, we do not think it nececssary to go into that conclusion in detail in view of the position as emerges in connected IT Reference No. 174 of 1997. Reference to the factual aspects is nceessary for adjudication of the question raised in that I.T.R., which we shall quote a little later.
2. The assessee filed its returns for the assessment year 1986-87 oil 9-2-1989, 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 sections 139(8), 215 and 216 came to Rs. 52,91,476. The matter was challenged in appeal before the Commissioner (Appeals), Calicut. The assessment was completed on 30-3-1989 and the appeal was filed on 26-4-1989. Before going into merits, the Cornmissioner (Appeals) thought it necessary to adjudicate the question whether the appeal filed by the assessee was to be entertained. When the assessee filed a return of income, tax to be paid under section 140A of the Act was Rs. 13,68,006. When the appeal was preferred on 26-4-1989 also, admitted tax was not paid. An application for condonation of delay along with another set of appellate papers was filed on 22-6-1989. Prior to that on 20-6-1989, the admitted tax had been paid, In the application for condonation of delay in filing the appeal, it was indicated that due to liquidity cash problems tile payment could not be made earlier. In between the date of completion of assessment and the date on which appeal was filed on 1-4-1989, there was a change in law regarding the admissibility of appeals, with effect from 1-4-1989. As per the amended provisions, the powers of the Commissioner (Appeals) and the Deputy Commissioner (Appeals) to condone the lapse of non-payment of admitted tax has been withdrawn. Therefore, according to the assessee, it had paid the tax due and another set of appellate papers were filed. Though in the application that was filed subsequently, plea of cash crunch had been raised, subsequently at the time of hearing it was contended that original appeal filed on 26-4-1989 should be taken as valiid appeal. The Commissioner (Appeals) was of the view that it was a fit case for condoning lapse in the payment of admitted tax at the time of thing the appeal and, accordingly, admitted the appeal. The appeal was heard on merits and was partly allowed. The revenue preferred second appeal before the Tribunal, Cochin Bench, Cochin. The first ground of challenge was the conclusion of the Commissioner (Appeals) regarding condonation of delay and admissiblity of appeal. The Tribunal affirmed the conclusion of the Commissioner (Appeals) though it indicated different reasons also.
3. At this juncture, it is necessary to take note of a few facts which arc relevant so far as IT Reference No. 111 of 1998 is concerned. Application for reference filed by the revenue was rejected on the ground that in view of the clear stipulations in section 256(l) specifying the period during which the reference application was to be filed, the application was clearly filed beyond the permissible limit. Application was filed by the revenue seeking variation of the order on the ground that the conclusion regarding the delayed presentation of the reference application was not tenable. It was pointed out that the order of the Tribunal was sent to the Commissioner who originally had the jurisdiction over the assessee’s case, but subsequently the jurisdiction lay with another Commissioner. The reference application was filed within the time permitted from the date of receipt of the order by the Commissioner who had the jurisdiction. The Tribunal thought that it had earlier committed mistake in computing the period of limitation, and further observed that for its fault, parties should not suffer and, therefore, recalled the order by holding that the application was riot barred by time. It entertained the application for reference and has referred the following question for opinion :
“Whether, on the facts and in the circumstances of the case,-
(i) the Commissioner (Appeals) is right and within the jurisdiction in entertaining the appeal and also in deciding the same on merits ?
(ii) and also in view of the words ‘at the time of filing of the appeal’ occurring in section 249(4) of the Income Tax Act, the Tribunal is right in law in holding that to an appeal filed after 1-4-1989 the provision prior to 1-4-1989 will apply ?”
4. The same is the subject-matter of adjudication in IT Reference No. 174 of 1997. As indicated above, the learned counsel for the assessee raised a point about the jurisdiction of the Tribunal to pass such an order in IT Reference No. III of 1998. But we do not think it necessary to adjudicate that question.
5. Coming back to the reference filed by the revenue, it is to be noted that the position of section 249 of the Act before amendment and after amendment with effect from 1-4-1989 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 has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
(b) where no return has been filed by the assessee …..
Prior to 1-4-1989
With effect from 1-4-1989
Provided that, on an application made by
Provided that, in a case falling under clause (b)
the appellant, in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of this sub- section.
Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.”
The relevant question to decide the applicability of the provision is the date on which the lis for the dispute arose. In the case at hand, the lis call be stated to have commenced latest b v the date when the notice under section 143(2) of the Act was issued, that is, a date prior to 1-4-1989. In Hoosein Kasavn Dadu (India) Ltd. v. The State of Madhva Pradesh AIR 1953 SC 221, while considering a similar position relating to change of law affecting right to appeal and requiring payment of tax admitted to be due as condition precedent for entertaining ~he appeal, the Apex court held that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated and before a decision is given, by the inferior Court. A pi-c-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 preexisting right of appeal, that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. A provision which is calculated to deprive an assessee of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. For the purposes of the accrual of the right of appeal, the critical and relevant date is the date of initiation of the proceedings and not the decision itself.
6. At this Juncture, it is also necessary to take note of another decision of the Apex court in Ramesh Singh v. Cinia Devi (1996) 3 $CC 142 relating to maintainability of the appeal vis-a-vis a prescription mandating deposit of requisite amount as condition precedent for entertaining an appeal. Following the decision in Hoosein Kasam Dada (India) Ltd.’s case (supra), State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 and Vitthalbliai Naranbhai Patel v. CSTAIR 1967 SC 344, it was observed that unless the new provision expressly or by necessary implication makes the provision retrospective in character, the right to appeal which is already crystallised will not be affected. This position was illuminatingly stated in Kirpa Singh v. Rasalldar Ajaipal Singh AIR 1928 Lahore 627 (FB). A vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary implication, as was observed by the Apex court in Garikapati Veeraya v. N. Subbiah Choudhury 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. Right of appeal is a substantive right conferred on a party by the statute. The conferring of right 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 – Special Military Estates Officer v. Munivenkatarainiah ( 1990) 2 SCC 168.
7. Above being the position in law, the Tribunal was justified in its conclusion that the appeal was to be entertained on the basis of law as it stood prior to 1-4-1989. The reference is, accordingly, answered in favour of the assessee and against the revenue. In view of this answer, as indicated above, it is not necessary to answer the reference so far as IT Reference No. III of 1998 is concerned.
The Income-tax References are disposed of as above.