JUDGMENT P. Govindan Nair, J. 1. Two common questions arise in these Tax Referred cases. They read as follows: (i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was entitled to be heard by the Appellate Assistant Commissioner on the question of, levy of interest under section 139 (1), proviso (iii) of the Income-tax Act, 1961 as contended by him in the grounds of appeal before the Appellate Assistant Commissioner for the assessment years 1962-63, 1963-64 and 1964-65? (ii) Whether, notwithstanding the fact that the assessee withdrew before the Tribunal his contention regarding the assessability of the income of Rs. 40,000 as earned income for each of the assessment years, 1962-63, 1963-64 and 1964-65, the Tribunal was justified in directing the Appellate Assistant Commissioner to hear the assessee on his objection relating to the levy of interest under section 139 (1), proviso (iii) for these three years? 2. The assessee had not filed his returns in time for the three years, 1962-63, 1963-64 and 1964-65. In his belated returns he admitted an income of Rs. 40,000. The Income-tax Officer treated this income as unearned income and imposed tax on that basis for the three years. By the assessment orders he also directed the payment of interest as envisaged by proviso (iii) to sub-section (1) of section 139 of the Income-tax Act, 1961, for short, the Act. Appeals were taken before the Appellate Assistant Commissioner against these assessment orders and it was contended that the sum of Rs. 40,000 disclosed by the assessee as his income must be taken as earned income. The further contention was raised that no interest should have been charged as envisaged by proviso (iii) to sub-section (1) of section 139 of the Act. The contention was that the proviso was not applicable because the Income-tax Officer had not granted time. The Appellate Assistant Commissioner dismissed the appeals holding that there was nothing wrong in the Income-tax Officer treating the sum of Rs. 40,000 in each of the years as unearned income. The contention regarding the levy of interest was negatived on the ground that no appeal would lie from such a direction of the Income-tax Officer. There were further appeals before the Tribunal which were disposed of by a common order. 40,000 in each of the years as unearned income. The contention regarding the levy of interest was negatived on the ground that no appeal would lie from such a direction of the Income-tax Officer. There were further appeals before the Tribunal which were disposed of by a common order. Before the Tribunal, the representative of the assessee conceded that the income of Rs. 40,000 may be treated as unearned income. It was however urged that there was no justification for charging interest. A ground that had been taken in the replies given by the assessee to the notice issued by the Income-tax Officer stating that proviso (iii) to subsection (1) of section 139 is not attracted and which was not urged before the Appellate Assistant Commissioner, was raised before the Tribunal and one of the questions that was considered by the Tribunal was whether this contention should be allowed to be raised before the Tribunal. The Tribunal held that the contention could be allowed to be raised. On this aspect, the first question referred to us arises. After having said so, the Tribunal further directed the Appellate Assistant Commissioner to deal with the contention of the assessee and determine whether any interest was chargeable. Question No. 2 raised in these Tax Referred Cases relates to the legality of this direction. 3. On behalf of the revenue, it was contended that the right of appeal is a specific right conferred by the statute and that as far as assessments of the type with which we are concerned in these cases it is section 246 (c) of the Act that would apply. It was further urged that an appeal from a direction to pay interest will not fall under any of the sub-sections of section 246 and that without a specific provision for an appeal no appeal would lie from such a direction before the Appellate Assistant Commissioner. Our attention was drawn to section 139 (1A) and it was pointed out that if the interest charged had to be reduced as a result of the tax imposed being reduced in appeal, there was ample provision in sub-section (1A) of section 139 of the Act. Our attention was drawn to section 139 (1A) and it was pointed out that if the interest charged had to be reduced as a result of the tax imposed being reduced in appeal, there was ample provision in sub-section (1A) of section 139 of the Act. Our attention was also drawn to the fact that by section 246 of the Act the order charging interest in certain cases had been made specifically appealable as in the case of an order under section 216 falling under sub-section (m) of section 246. This by implication meant, counsel for the Revenue urged, that there was a denial of the right of appeal where interest was ordered to be charged under proviso (iii) to sub-section (1) of section 139 of the Act. 4. We may mention at this stage that we are referring to the section as it stood before its amendment by the Finance Act, 1972 which came into force on 1st April 1972. 5. On behalf of the assessee, the main argument was based on the explanation to section 251 dealing with the powers of the Appellate Assistant Commissioner. That explanation reads thus: "Explanation: In disposing of an appeal the Appellate Assistant Commissioner may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Appellate Assistant Commissioner by the Appellant." The argument was that this provision enabled the Appellate Assistant Commissioner to decide any matter arising out of the order appealed against whether it had been taken before the Appellate Assistant Commissioner by the appellant or not. 6. It is an established principle that the right of appeal is a creature of statute. Unless therefore there is express provision in a statute conferring a right of appeal, a person aggrieved by an order cannot claim that the question decided by the order must be agitated in appeal. We do not consider that an order under proviso (ii) to sub-section (1) of section 139 is part of the assessment proceedings understanding assessment proceedings as quantification of the income that is liable to be taxed under the Act, the imposition of tax on that income by applying the appropriate Finance Act and the determination of the question of the status of assessee. Clearly the imposition of interest for a failure to file the return within the time prescribed by the statute is in the nature of a penalty and though such proceedings arise out of or are related to assessment proceedings, do not form part of the assessment proceedings. Nor do we think that the charge of interest amounts to imposition of tax. We think this is clear from the principle of the decision of the Supreme Court, relied on by counsel on behalf of the Revenue, in Bhor Industries Ltd. and others v. Commissioner of Income-tax, Bombay City (1961) 42 I.T.R. 57 . Section 246 is admitted to be the only section providing for appeals from the orders passed by the Income-tax Officer. Admittedly it has not provided for an appeal from an order charging interest under proviso (iii) to sub-section (1) of section 139. What we have said indicates that such charge of interest is not part of the assessment. So there was no appeal under section 246 of the Act. If this be the position, to rely on the explanation to section 251 dealing with the procedure in appeal to enlarge the very scope of the appeal would be unjustified. The purpose of the explanation is entirely different, not to open the flood gates and have the appellate jurisdiction inundated with all sorts of matters, but only to enable, within the purview of the jurisdiction of the Appellate Assistant Commissioner, a discussion of the matters which can reasonably arise from appeals provided under section 246 of the Act. 7. In view of the concession made by the assessee's representative before the Tribunal that the income of Rs. 40,000 in each of the years was rightly treated as unearned income, there would remain no question to be dealt with before the Appellate Assistant Commissioner in the appeal that was taken by the assessee before it. The justifiability of the imposition of the interest was not a matter which could be dealt with by the Appellate Assistant Commissioner. The direction of the Tribunal that such a matter should be dealt with by the Appellate Assistant Commissioner arises from an erroneous view of the law. We therefore answer question No. 2 referred to us in the negative, that is, in favour of the Revenue and against the assessee. 8. The direction of the Tribunal that such a matter should be dealt with by the Appellate Assistant Commissioner arises from an erroneous view of the law. We therefore answer question No. 2 referred to us in the negative, that is, in favour of the Revenue and against the assessee. 8. An appellate authority has always jurisdiction and will be acting well within the principles of law if it permitted an additional ground being raised before the appellate authority, particularly in cases where such a ground had been taken at the earliest time by the person urging that ground and when it pertained to a question of law. The permitting of an additional ground being taken is a matter of judicial discretion to be exercised considering all the attendant circumstances. On principle and in the circumstances of the case, the permission granted by the Tribunal to the assessee to raise the ground that no interest was chargeable under proviso (iii) to sub-section (1) of section 139 of the Act was therefore right in law. Only that the forum where this should be discussed is not before the Appellate Assistant Commissioner or before the Tribunal. We accordingly answer question No. 1 in the affirmative, that is, in favour of the assessee and against the department. We direct the parties to bear their respective costs. 9. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.