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JUDGMENT Tendolkar, J.-The question that falls for determination on this reference is whether the first proviso to sub-section (1) of section 30, which confers a right of appeal to the Appellate Assistant Commissioner against certain orders, enacts a condition precedent to the presentation of the appeal or to the exercise of the right of appeal at all; or whether, in the alternative, it does not affect the right of appeal, but it affects merely the hearing and final disposal of the appeal. The relevant facts are that for the assessment year 1949-50 a notice of demand under section 29 was made for the payment of Rs. 1,80,646-14-0 as income-tax and super-tax. The amount was payable on the 17th of July, 1954; but at the request of the assessee instalments were allowed and the last instalment of Rs. 30,646-14-0 was made payable on or before the 20th of March, 1955. There was default in payment of the last instalment and the Income-tax Officer, acting under section 46(1), imposed a penalty of Rs. 3,000 on the 31st of March, 1955. The assessee preferred an appeal to the Appellate Assistant Commissioner on the 20th of April, 1955. The amount of the last instalment was paid on the 16th of May, 1955. The appeal came up for hearing before the Appellate Assistant Commissioner on the 19th of August, 1955, when the Income-tax Officer, raised a preliminary objection that the appeal was not competent because prior to the presentation of the appeal the tax had not been paid. This objection was upheld by the Appellate Assistant Commissioner, but upon appeal the Tribunal held that upon a true construction of section 30, subsection (1), and the first proviso thereto, the right of appeal was not taken away, but only the remedy was barred until tax was paid. It is this view of the Tribunal which has been challenged before us on this appeal. Now, turning to the relevant section, section 30, sub-section (1) provides that any assessee may appeal to the Appellate Assistant Commissioner against the orders enumerated in that sub-section. The first proviso to this sub-section is: "Provided that no appeal shall lie against an order under subsection (1) of section 46 unless the tax has been…

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