The ITO, Ward-1, Tanuku V. Sri Godavarthi Uma Maheswara Rao, Tanuku

ITA 162/VIZ/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7150 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-10-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 10-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Keywords: Condonation of delay

Judgement Text

ITA NO.162 OF 10 G.U.M. RAO, TANUKU IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO. 162 /VIZAG/ 20 10 ASSESSMENT YEAR : 2007 - 08 ITO WARD - 1 TANUKU VS. SRI GODAVARTHI UMA MAHESWARA RAO TANUKU (APPELLANT) (RESPONDENT) PAN NO.ACJPR 6066N APPELLANT BY: SHRI R.K. SINGH, DR RESPONDENT BY: SHRI Y. RATNAKAR, ADVOCATE ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT. THE REVENUE HAS ALSO FILED AN APPLICATION FOR THE ADMISSION OF THE ADDITIONAL GROUND WHICH IS AS UNDER: THE CIT(A) OUGHT NOT TO HAVE ADMITTED THE APPEAL O F THE ASSESSEE ON ACCOUNT OF THE ASSESSEE HAVING NOT PAID THE ADMITTED SELF-ASSESSMENT TAX AS COMPUTED BY HIM VIDE HIS RET URN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 BEFORE FILING OF TH E APPEAL, BECAUSE THE PROVISIONS OF SECTION 249(4)(A) OF THE I.T. ACT ENVISAGES THE FULFILLMENT OF PRE-CONDITION OF PAYMENT OF TAX DUE ON THE INCOME RETURNED WHERE A RETURN HAS BEEN FILED BY THE ASSES SEE FAILING WHICH THE APPEAL CANNOT BE ADMITTED AT THE OUTSET. THE C IT(A) HAS ERRED IN ADMITTING AND THERE AFTER ADJUDICATING THE APPEA L ON MERIT IN THE FACE OF NON-PAYMENT OF THE TAX DUE ON THE INCOME RE TURNED BY THE ASSESSEE. 2. SINCE THE ADDITIONAL GROUND IS OF LEGAL IN NATUR E, WE ADMIT THE SAME AND PREFER TO ADJUDICATE IT AT THE THRESHOLD. 3. THE LD. D.R. EMPHATICALLY ARGUED THAT THE ASSESS EE HAD NOT PAID THE ADMITTED SELF-ASSESSMENT TAX AS COMPUTED BY HIM VID E HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 BEFORE FILING OF TH E APPEAL WHICH IS A CONDITION PRECEDENT FOR FILING THE APPEAL AS PER PR OVISIONS OF SECTION 249(4)(A) OF THE I.T. ACT. THEREFORE, THE CIT(A) O UGHT TO HAVE DISMISSED THIS APPEAL BEING NOT ADMITTED BUT CIT(A) INSTEAD, ADJUD ICATED THE APPEAL ON ITA NO.162 OF 10 G.U.M. RAO, TANUKU 2 MERIT AND DELETED THE PENALTY. THE ACTION OF THE C IT(A) IS WITHOUT HAVING ANY JURISDICTION, THEREFORE, THE ORDER PASSED BY THE CI T(A) DESERVES TO BE KNOCKED DOWN. 4. THE LD. COUNSEL FOR THE ASSESSEE DID NOT DISPUTE THE FACTUAL ASPECT. HE CANDIDLY ADMITTED THAT BEFORE FILING OF THE APPE AL, THE ADMITTED SELF- ASSESSMENT TAX AS COMPUTED BY THE ASSESSEE ON HIS R ETURN OF INCOME WAS NOT PAID DUE TO FINANCIAL CRUNCHES. NOW THE ASSESEE HA S PAID THE ADMITTED SELF- ASSESSMENT TAX BEFORE FILING AN APPEAL BEFORE THE T RIBUNAL. HE DID NOT DISPUTE THE LEGAL PROPOSITIONS BUT HE HOWEVER SUBMI TTED THAT SINCE THE ASSESSEE HAS PAID THE SELF-ASSESSMENT TAX, THE ORDE R OF THE CIT(A) BE TREATED AS HAS BEEN PASSED ON THE FULFILLMENT OF THE REQUIS ITE CONDITIONS ENVISAGED U/S 249(4)(A) OF THE ACT OR THE MATTER MAY BE RESTO RED BACK TO THE FILE OF THE CIT(A) TO PASS A FRESH ORDER IN ACCORDANCE WITH LAW . 5. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE ORDER OF THE LOWER AUTHORITIES AND THE RELEVANT PRO VISIONS OF THE ACT, WE FIND THAT AS PER SECTION 249(4)(A), THE ASSESSEE IS REQU IRED TO PAY THE TAX DUE ON THE INCOME RETURNED BEFORE FILING AN APPEAL BEFORE THE CIT(A). IF IT IS FILED IT HAS TO BE DISMISSED BECAUSE THE CIT(A) WOULD NOT AS SUME A JURISDICTION UNLESS THE ASSESSEE HAS PAID THE TAX DUE ON THE INC OME RETURNED. THE RELEVANT PROVISIONS OF SUB-SECTION 4 OF SECTION 249 ARE EXTRACTED HEREUNDER: [(4) NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED AT T HE 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, THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE T AX WHICH WAS PAYABLE BY HIM: PROVIDED THAT, [IN A CASE FALLING UNDER CLAUSE (B) AND] ON A N APPLICATION MADE BY THE APPELLANT IN THIS BEHALF, T HE [COMMISSIONER (APPEALS)] MAY, FOR ANY GOOD AND SUFFICIENT REASON TO BE RECORDED IN WRITING, EXEMPT HIM FROM THE OPERATION OF THE PR OVISIONS OF {THAT CLAUSE}.] ITA NO.162 OF 10 G.U.M. RAO, TANUKU 3 6. UNDISPUTEDLY, THE ASSESSEE HAD NOT PAID THE TAXE S DUE ON THE INCOME TAX RETURN BEFORE FILING OF THE APPEAL. THEREFORE, THE APPEAL FILED BY THE ASSESSEE BEFORE THE CIT(A) WAS NOT MAINTAINABLE AND CIT(A) OUGHT TO HAVE DISMISSED THE APPEAL BEING NOT MAINTAINABLE FOR WAN T OF PAYMENT OF TAXES DUE ON THE INCOME TAX RETURN. BUT CIT(A) INSTEAD O F HAVING EXAMINED THIS LEGAL PROVISIONS, HAS DECIDED THE APPEAL ON MERIT A ND DELETED THE PENALTY. SINCE THE APPEAL OF THE ASSESSEE WAS NOT MAINTAINAB LE BEFORE THE CIT(A) ON ACCOUNT OF NON-PAYMENT OF DUE TAXES, THE CIT(A) DID NOT HAVE ANY JURISDICTION TO ENTERTAIN THE APPEAL FILED BY THE A SSESSES. THEREFORE, THE ORDER PASSED BY THE CIT(A) WAS WITHOUT HAVING ANY JURISDI CTION. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A). NOW THE ASSESSEE HA S PAID THE ADMITTED TAX BEFORE FILING OF THE APPEAL BEFORE THE TRIBUNAL, SO THE APPEAL OF THE ASSESSEE CAN BE ENTERTAINED BY THE CIT(A). SINCE THE TAX DU E WERE NOT PAID DURING THE PENDENCY OF THE APPEAL BEFORE THE CIT(A), THE ORDER OF THE CIT(A) CANNOT BE CALLED TO HAVE BEEN PASSED BY THE CIT(A) HAVING JUR ISDICTION TO ENTERTAIN THE APPEAL. SINCE THE TAXES HAVE BEEN PAID BY THE ASSE SSEE, WE GRANT LIBERTY TO THE ASSESSEE TO FILE A FRESH APPEAL BEFORE THE CIT( A) ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY WHICH SHOULD BE ENTERTAINE D BY THE CIT(A) SYMPATHETICALLY. 7. SINCE THE CIT(A) HAS DECIDED THE APPEAL ON MERIT WITHOUT HAVING ANY JURISDICTION, WE SET ASIDE HIS ORDER. THE ASSESSEE IS HOWEVER AT LIBERTY TO APPROACH THE CIT(A) WITH HIS GRIEVANCE ALONG WITH T HE APPLICATION FOR CONDONATION OF DELAY AND CIT(A) MAY ADJUDICATE THE SAME IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 2.3.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 2 ND MARCH, 2011 ITA NO.162 OF 10 G.U.M. RAO, TANUKU 4 COPY TO 1 ITO WARD - 1, TANUKU 2 SRI GADAVARTHI UMA MAHESWARA RAO, FLAT NO.301, INDR ALOK AVENUE, R.P. ROAD, TANUKU 3 THE CI T, RAJAHMUNDRY 4 THE CIT (A) , RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM