Commissioner of Income-tax Vs. Kalinga Tubes - Court Judgment

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.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........act, 1961, to call upon the. appellate tribunal to state a case on the following question of law and refer the same to this court :'whether, on the facts and in the circumstances of the case, the tribunal was justified in allowing the claim in payment of guarantee commission in the sum of rs. 45,000 to kalinga foundation trust, which is not considered to be a genuine trust ?'2. the aforesaid amount was shown in the books of account of the assessee-opposite party as receipt, from (sic ) kalinga foundation trust. the same was disallowed by the income-tax officer on the ground that the trust had no independent and separate identity of its own and treated the amount as an income of the assessee from undisclosed sources. the appeal carried by the assessee was allowed and in further appeal by the revenue, the tribunal, following the decision in cit v. biju patnaik [1974] ilr (cuttack) 374, that kalinga foundation trust was an independent and separate entity, negatived the plea of the revenue. an application filed by the revenue for making a reference was rejected. hence, this application to call for a statement of case and reference of the question.3. having regard to the fact that,.....