NASIR ASLAM ZAHID, J.--In this matter the following question has been referred by the Income-tax Appellate ',Tribunal (Karachi Bench) Karachi for our opinions :-- "Whether on the facts and in the (circumstances of the case, the appeal filed by the assessee on 1- 13-19618, in respect of assessm ent years 1963,64 and 1964-65 were maintainable before the Tribunal although by the Finance Act, 1967, sections 30 and 31 of the Income-tax Act stood amended on the said date modifying the procedure of appeal from the order of the Income-tax Officer?"
2. Prior to the amendment of the Income-tax Act, 1922 by the Finance Act of 1967, an appeal was provided to the Appellate Assistant Commissioner against an order of the Income-tax Officer, where the total income of the assessee did not exceed Rs. 2,00,000 but where the total income exceeded Rs. 2,00,000 an appeal was directly provided from the order of the Income-tax Appellate Tribunal. Two material changes were brought about by the amendment to sections 30 and 31 of the Income-tax Act by the Finance Act of 1967 and these were that in all cases appeals were provided from orders of Income-tax Officers to the Appellate Assistant Commissioners irrespective of the total income of the assessee, and secondly it was provided that no appeal shall lie against any order of the Income-tax Officer unless certain taxes were paid by the assessee. The Tribunal in its order dated 12-2-1969 came to the following conclusion :- "The admitted position is that the right of appeal is a vested right. It also cannot be denied in our view that the omission of clause (a) of section 33 (1) has taken away a right of appeal which was not restricted in any manner directly before the Tribunal. It is true that this right of appeal has not been completely taken away as the new substituted provisions of section 30 (1) provide an alternative remedy but, what we have to set is whether alternative remedy is as efficacious as the one which has now been taken away. Admittedly remedy is restrictive inasmuch as it requires prior payment of taxes, whereas the origins right was without any pre-conditions. It may also be not out of place to point out here that the substituted right of appeal is a circuitous one and would necessarily delay or postpone a remedy which was imme--diately available to those tax-payers as fall in the category of our present appellant. Thus, the present amendment in our view in some way or the other touches upon a vested right in existence at the time when the amendment was brought about and consequently we have no hesitation in holding that the present provisions cannot have retrospec--tive effects. In this view of -the matter appeals filed before the Tribunal directly for the years 1963-64 and 1964-65 must be governed by the law as it then was. In other words the appeals were properly filed before the Tribunal. We accordingly rule out the preliminary objection and shall now proceed to determine all these appeals on merits."
3. We have heard Mr. Nasrullah Awan, learned counsel for the applicant, the Commissioner of Income-tax, and Mr. Ali Athar, yearned counsel for the assessee. It was contended by Mr. Awan that in the instant case the assessee filed direct appeals relating to the assessment years 1963.64 and 1964-65 before the Tribunal on 1-8-1968 on which date the amendments through the Finance Act, 1967 had already been made in the Income-tax Act, 1922 and the appeals, therefore, should have been filed before the Appellate Assistant Commissioner and the appeals filed directly to the Tribunal were incompetent and the Tribunal erred in holing that appeals were competently filed by the assessee directly .Before the Tribunal. It was contended that previously only one appeal was provided in respect of cases where the total income exceeded Its. 2,00,000 but through the amendment by the Finance Act of 1967, the assessee was given two appeals, first to the Appellate Assistant Commissioner and against his decision to the Tribunal and as such the amend--ments that have beep made by the Finance Act do not take away any vested right but on the contrary they are more beneficial than the provisions of law prior to their amendment by the Finance Act, 1967.
4. Mr. Ali Athar counsel for the assessee, however, contended that the assessee would have had no cavil to the proposition advanced by the learned counsel for the applicant Commissioner if the only amendment that had been made was that in place of one appeal two appeals were provided, but, as high--lighted by the income-tax Tribunal, the remedy that has been provided by the amendment is restricted inasmuch as it requires prior payment of taxes, whereas the original right under the unamended provision was without any re-conditions. According to learned counsel the amendments are prospec--tive and cannot be given retrospective effect to take away the right of the assessee to file direct appeals to the Tribunal without deposit of taxes. Learned counsel has also referred to a decision of a Division Bench of the Lahore High Court in the case of Essential Industries, Model Town, Lahore v. C. B. R. PLD 1969 Lah. 24 which was also relied upon by the Income-tax Tribunal in its decision.
5. We agree with the conclusion reached by the Income-tax Appellate Tribunal that the amended provisions although they provide two appeals are plainly restrictive, as they require payment of taxes as a precondition for the filing of the appeals. The language of the amendments in question is not such from which the intention to give retrospective effect could be inferred. The aforesaid decision of the Lahore High Court also supports the view that has been taken by the Tribunal that the appeals filed before tire Tribunal directly for the years 1963-64 and 1964-65 are to be governed by the law before its amendment by the Finance Act, 1967.
We may refer here with advantage to para. 14 of the said judgment of the Lahore High Court: -- "In the light of the above discussion it seem to us that in the present cases the unrestricted right of appeal which vested in the petitioners has been interfered and positively impaired by the amendment of section30 (1) of the Act brought about by the Finance Act of 196. In the absence of any express prevision or necessary intendment to give this amendment retrospective effect, the amended provision of lave cannot be applied to the cases of tire petitioners because the lis in their cases commenced on various dates in the year 1962 when no such restric--tion was placed on the right of appeal which was made available to them under section 30 (1) of the Act as it then stood.
We are there--fore, of the view that the right of appeal vested in the petitioners would be governed by the unamended provision of law and the petitioners cannot be asked to deposit the 50 % of the tax as envisaged in the amended proviso to section 30 (1) of the Act,"
In view of the above we answer the question referred to us in the affirma--tive, but there will be no order as to costs.