M/S. JHUNJHUNU BALAJI MOTORS PVT. LTD., JHUNJHUNU V. ACIT, CIRCLE-JHUNJHUNU, JHUNJHUNU

ITA 264/JPR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8799 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 21-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL CIT A
• Keywords: Additional evidence; Reasonable cause; Condonation of delay
• Section: 264; 13; 6

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NOS. 264 & 263/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 & 2013-14 M/S JHUNJHUNU BALAJI MOTORS PVT. LTD. MANDAWA ROAD, SITAR, JHUNJHUNU CUKE VS. ACIT, CIRCLE, JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCJ9791P VIHYKFKHZ@ AP PELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL.CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/07/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 30/07/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T THE ORDERS PASSED BY THE LD. CIT(A)-3, JAIPUR DATED 28.03.2019 FOR A.Y 2013-14 AND A.Y 2014-15 RESPECTIVELY. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE L D. AR, SH. ANIL KUMAR SHARMA HAS MOVED AN ADJOURNMENT APPLICATION R EQUESTING FOR ADJOURNING THE MATTER FOR 2-3 WEEKS. IT IS NOTED TH AT THESE TWO APPEALS HAVE BEEN FILED WAY BACK IN JUNE, 2020 AND THEREAFT ER, THE MATTER HAS BEEN ADJOURNED ON AS MANY AS 18 OCCASIONS. THEREFOR E, GIVEN THAT THE MATTER HAS BEEN PENDING FOR A LONG TIME AND IN ABSE NCE OF ANY ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 2 REASONABLE EXPLANATION FOR SEEKING ADJOURNMENT, IT WAS DECIDED NOT TO ADJOURN THE MATTER ANY FURTHER AND TO DISPOSE OFF T HESE TWO APPEALS BASED ON MATERIAL AVAILABLE ON RECORD. 3. SINCE COMMON ISSUES ARE INVOLVED, BOTH THESE AP PEALS ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER. IT IS NOT ED THAT THERE IS A DELAY IN FILING BOTH THE APPEALS BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS MOVED AN APPLICATION FOR SEEKING CONDO NATION OF DELAY ALONG WITH AN AFFIDAVIT AND THE CONTENTS THEREOF RE ADS AS UNDER:- IN CONNECTION WITH THE SUBJECT CITED ABOVE IT IS H UMBLY SUBMITTED: 1. THE APPELLANT BEING A PVT LTD. COMPANY GOT IT'S BOOKS OF ACCOUNTS AUDITED AS PER RELEVANT PROVISIONS OF COMP ANIES ACT, 1956 AND IT ACT, 1961 AND DISCLOSED NET PROFIT OF R S. 37,10,130/- AS APPEARING IN AUDITED PROFIT & LOSS ACCOUNT. 2. THE ASSESSEE DUE TO SERIOUS FINANCIAL HARDSHIPS COULD NOT DEPOSITED THE SELF ASSESSMENT TAX AND FILED RETURN OF INCOME FOR THE RELEVANT A.Y.2013-14. 3. THE AO COMPLETED THE ASSESSMENT EX-PARTY U/S 14 7/144 OF IT ACT VIDE ASSESSMENT ORDER DATED 28.12.2017 AT HU GE ASSESSED INCOME OF RS. 2,93,38,850/-. 4. THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) -III JAIPUR AGAINST THE RELEVANT ASSESSMENT ORDER DATED 28.12.2 017 ALONG WITH APPLICATION FOR CONDONING DELAY OF 34 DAYS IN FILING OF THE APPEAL. 5. THE LD. CIT(A)-III JAIPUR OBSERVED THAT THE ASS ESSEE HAS NOT DEPOSITED THE ADVANCE TAX AS PROVIDED U/S 249(4)(B) OF IT ACT, ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 3 1961, THEREFORE VIDE ORDER DATED 28.03.2019 DISMISS ED THE APPEAL OF THE ASSESSEE AS UN ADMITTED. 6. THE ORDER OF THE LD. CIT(A) WAS COMMUNICATED VID E E-MAIL ON 28.03.2019 WHICH CAME IN THE KNOWLEDGE OF THE ASSES SEE EITHER ON THE SAME DAY OR LATER DAY. 7. THE A/R OF THE ASSESSEE ADVISED THAT REMEDY OF T HE REVIVAL OF THE APPEAL BEFORE LD. CIT(A) OR PREFERRING APPEA L BEFORE HON. ITAT AGAINST THE ORDER OF LD. CIT(A) MAY BE TAKEN O NLY AFTER DEPOSIT OF TAX EQUAL TO ADVANCE TAX AS PROVIDED U/S 249(4)(B) OF IT ACT 1961. 8. THE ASSESSEE WAS SUBJECT TO CONTINUOUS DOWN FALL IN BUSINESS AND WIFE OF THE DIRECTOR OF THE ASSESSEE C OMPANY WAS SUFFERING FROM SERIOUS DISEASE CANCER, THEREFORE UN DER SUCH ADVERSE BUSINESS AND PERSONAL CIRCUMSTANCES COULD N OT DEPOSITED ANY AMOUNT OF TAX TILL 25.02.2020. 9. THE ASSESSEE AFTER IT'S BEST EFFORTS COULD DEPOS ITED RS. 5,00,000/-ON 25.02.2020 AND DISCUSSED THE CASE WITH HIS A/R. 10. THE A/R OF THE ASSESSEE ADVISED THAT TAKING IN TO ACCOUNT THE TAX ALREADY DEPOSITED IN DIFFERENT INSTALLMENTS BEFORE DISPOSAL OF THE APPEAL BY LD. CIT(A) ALONG WITH TAX DEPOSITE D ON 25.02.2020 IS SUFFICIENT FOR COMPLIANCE OF SECTION 249(4)(B) OF IT ACT, 1961. THE ASSESSEE DIRECTED HIS A/R TO FILE TH E APPEAL BEFORE HON. ITAT. 11. THE A/R OF THE ASSESSEE TAKEN SOME TIME FOR PRE PARATION OF THE APPEAL, HOWEVER UNDER SURROUNDING CIRCUMSTANCES OF COVID- 19 AND NATIONAL LOCK DOWN COULD NOT FILED THE APPEA L IN DUE COURSE. 12. IN VIEW OF THE FACTS NARRATED HEREIN ABOVE, TH E APPELLANT COULD NOT FIELD THE RELEVANT APPEAL AGAINST THE IMP UGNED ORDER ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 4 OF LD. CIT (A) DATED 28.03.2019 WITHIN THE PERIOD O F LIMITATION AS PROVIDED U/S 253(3) OF THE IT ACT 1961. 13. THUS THE DELAY IN FILING OF RELEVANT APPEAL IS NOT DELIBERATE AND NOT ATTRIBUTABLE TO ANY MISCONDUCT OR RECKLESSN ESS OF APPELLANT AND THE APPELLANT HAS A REASONABLE CAUSE FOR NOT FILING THE RELEVANT APPEAL WITH IN THE PERIOD OF LIMITATIO N OF 60 DAYS FROM THE DATE OF COMMUNICATION OF THE IMPUGNED ORDE R OF LD. CIT(A). THEREFORE, IT IS HUMBLY PRAYED TO ADMIT THE APPEAL AS PROVIDED U/S 253(5) OF I.T ACT, 1961, BY CONDONING THE DELAY IN FILING OF THE SAME AND DECIDE THE APPEAL ON MERITS. 4. PER CONTRA, THE LD. DR IS HEARD WHO HAS OPPOSED THE CONDONATION OF DELAY STATING THAT SUBSTANTIAL DELAY HAS HAPPENE D IN FILING THESE TWO APPEALS AND NO REASONABLE EXPLANATION HAS BEEN SUBM ITTED BY THE ASSESSEE. 5. AFTER CAREFULLY PURSUING THE APPLICATION, THE AF FIDAVIT FILED BY THE ASSESSEE AND HEARING THE LD DR, WE FIND THAT THE AS SESSEE HAS REASONABLY EXPLAINED THE REASONS FOR THE DELAY IN F ILING THE PRESENT APPEALS ON ACCOUNT OF EXTREME FINANCIAL HARDSHIP AN D ON ACCOUNT OF ONGOING COVID PANDEMIC, AND IN VIEW OF OVERARCHING PRINCIPLE OF SUBSTANTIAL JUSTICE TO PREVAIL OVER THE TECHNICAL G LITCHES, THE DELAY IN FILING THE TWO APPEALS IS HEREBY CONDONED AND THE A PPEALS ARE ADMITTED FOR ADJUDICATION. 6. IN ITA NO. 263/JP/2020, THE ASSESSEE HAS TAKEN T HE FOLLOWING GROUNDS OF APPEAL:- ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 5 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL AS UN ADMITTED DUE TO NON DEPOSIT OF ADMITTED TAX/ADVANCE TAX AS PROVI DED U/S 249(4) OF I.T. ACT, 1961. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) IS NOT JUSTIFIED IN NOT DISPOSING THE FOLLOW ING GROUNDS OF APPEAL ON MERITS. 2.1 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE AO IS NOT JUSTIFIED IN ESTIMATING THE NET PROFIT OF RS. 2 ,88,00,000/- BY APPLYING NP RATE OF 8% OF GROSS RECEIPTS OF RS. 36, 00,00,000/-. 2.2 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE AO IS NOT JUSTIFIED IN ESTIMATING THE NET INCOME FROM INT EREST AND COMMISSION OF RS. 3,17,048/-. 2.3 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE AO IS NOT JUSTIFIED IN ESTIMATING THE NET INCOME FROM REN T OF RS. 2,21,800/-. 7. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN DISMISSING THE APPEAL DUE TO NON DEPO SIT OF ADMITTED TAX/ADVANCE TAX AS PROVIDED U/S 249(4) OF THE ACT, 1961. 8. IN THIS REGARD, THE LD DR DRAWN OUR REFERENCE TO THE FINDINGS OF THE LD. CIT(A) WHICH READ AS UNDER:- I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFORE ME . I FIND THAT THE APPELLANT IS NOT PAID THE TAX ON ADMITTED INCOM E TILL DATE, WHICH IS MANDATORY AS PER SECTION 249(4) OF THE IT ACT. THE ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 6 SECTION SAY THAT NO APPEAL UNDER THIS CHAPTER SHAL L BE ADMITTED UNLESS AT THE 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 RETURNE D 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 TAX WHICH WAS PAYABLE BY HIM. IN THE APPELLANT CASE THE APPELLANT NOT FILE ANY R ETURN OF INCOME. THE A/R OF THE APPELLANT SUBMITTED PROFIT A ND LOSS ACCOUNT, BALANCE SHEET WHERE IN PROFIT BEFORE TAX W AS SHOWN RS. 37,10,130/- AND INCOME TAX AT RS. 14,00,000/- BUT T HE APPELLANT NOT PAID ANY AMOUNT OF ADVANCE TAX WHICH IS VIOLAT ION OF SECTION 249(4) OF THE I.T. ACT. THEREFORE, THE APPEAL IS DI SMISSED AS UN- ADMITTED. 9. IT WAS SUBMITTED BY THE LD DR THAT SINCE THE ASS ESSEE HAS NOT FILED ANY RETURN OF INCOME ORIGINALLY, THEREFORE, I T WAS INCUMBENT ON PART OF THE ASSESSEE TO DEPOSIT AN AMOUNT EQUAL TO ADVAN CE TAX WHICH WAS DUE HAD IT FILED ITS RETURN OF INCOME. IT WAS SUBM ITTED THAT SINCE THE ASSESSEE FAILED TO DEPOSIT TAXES EQUIVALENT TO THE AMOUNT OF ADVANCE TAX, THE LD CIT(A) WAS RIGHT IN REJECTING THE APPEA L AT THE THRESHOLD IN VIEW OF THE CLEAR AND MANDATORY PROVISIONS OF SECTI ON 249(4) OF THE ACT. 10. WE HAVE HEARD THE LD. DR AND CONSIDERED THE MAT ERIAL AVAILABLE ON RECORD. THE PROVISIONS OF SECTION 249(4) OF THE ACT READ AS FOLLOWS:- ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 7 SECTION 249(4) : 'NO APPEAL UNDER THIS CHAPTER SHA LL BE ADMITTED UNLESS AT THE 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 ASSESSE E, THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE T AX WHICH WAS PAYABLE BY HIM : PROVIDED THAT, IN A CASE FILLING UNDER CLAUSE (B) A ND ON AN APPLICATION MADE BY THE APPELLANT IN THIS BEHALF, T HE CIT(A) MAY, FOR ANY GOOD AND SUFFICIENT REASON TO BE RECORDED I N WRITING, EXEMPT HIM FROM THE OPERATION OF THE PROVISIONS OF THAT CLAUSE.' 11. ON READING OF THE AFORESAID PROVISIONS, IT IS N OTED THAT WHERE THE ASSESSEE HAS NOT FILED ITS RETURN OF INCOME, THE AS SESSEE IS REQUIRED TO PAY AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE TAX WH ICH WAS PAYABLE BY HIM WHICH NEEDS TO BE TAKEN INTO CONSIDERATION B EFORE THE APPEAL IS ADMITTED FOR ADJUDICATION BY THE LD CIT(A). AT THE SAME TIME, THE CIT(A) HAS BEEN EMPOWERED TO EXEMPT THE ASSESSEE FR OM THE PAYMENT OF AMOUNT EQUAL TO ADVANCE TAX ON AN APPLICATION FI LED BY THE ASSESSEE. IN OTHER WORDS, WHERE THE ASSESSEE DID NOT FILE ANY RETURN FOR THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE CAN FILE THE APPEAL BEFORE THE LD CIT(A) AGAINST THE ASSESSMENT ORDER PASSED BY THE A O EVEN WITHOUT THE PAYMENT OF TAX PROVIDED HE SATISFIES THE CIT(A) WITH THE REASONABLE EXPLANATION FOR NON-PAYMENT OF TAXES. THEREFORE, BE FORE THE APPEAL IS ADMITTED FOR ADJUDICATION, THE LD CIT(A) HAS TO EXA MINE WHETHER THE ASSESSEE HAS EITHER COMPLIED WITH THE REQUIREMENT O F PAYMENT OF TAXES, OR HAS MOVED AN APPLICATION SEEKING AN EXEMPTION FR OM SUCH ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 8 REQUIREMENT AND ON DISPOSAL OF SUCH APPLICATION SEE KING EXEMPTION FROM PAYMENT OF TAXES, THE APPEAL MAY BE ADMITTED F OR ADJUDICATION. 12. IN THE INSTANT CASE, ON PERUSAL OF THE ORDER O F THE LD CIT(A), WE FIND THAT THE LD CIT(A) HAS NOT ADMITTED THE APPEAL FOR WANT OF PAYMENT OF TAXES EQUAL TO ADVANCE TAX BY THE ASSESSEE. APP ARENTLY, THERE IS NOTHING ON RECORD WHICH SUGGESTS THAT THE ASSESSEE HAS MOVED ANY APPLICATION BEFORE THE LD CIT(A) SEEKING EXEMPTION FROM PAYMENT OF TAXES. HOWEVER, BEFORE US, THE ASSESSEE HAS MOVED AN APPLICATION SEEKING ADMISSION OF ADDITIONAL EVIDENCE BY WAY OF TAX CHALLANS DISCLOSING PAYMENT OF RS 13 LACS EQUAL TO ADVANCE T AX AS PER SECTION 249(4)(B) FOR THE IMPUGNED ASSESSMENT YEAR. 13. IT IS NOTED THAT TAXES AMOUNTING TO RS 6 LACS H AVE BEEN DEPOSITED BY THE ASSESSEE BEFORE FILING OF APPEAL BEFORE THE LD CIT(A), THE TAXES AMOUNTING TO RS 2 LACS HAVE BEEN DEPOSITED AFTER FI LING OF APPEAL BEFORE THE LD CIT(A) AND RS 5 LACS HAVE BEEN DEPOSITED AFT ER PASSING OF THE IMPUGNED ORDER BY THE LD CIT(A) WHICH REASONABLY EX PLAINS THE FINANCIAL HARDSHIP FACED BY THE ASSESSEE AND ALSO ITS EARNEST NESS IN TAKING THE NECESSARY STEPS TO BE IN COMPLIANCE WITH THE PROVIS IONS OF SECTION 249(4)(B) AND TO BE HEARD ON MERITS. 14. GIVEN THAT THE ASSESSEE HAS DEPOSITED AN AMOUNT OF RS 13 LACS EQUAL TO ADVANCE TAX AS PER SECTION 249(4)(B) FOR T HE IMPUGNED ASSESSMENT YEAR, THE ADDITIONAL EVIDENCE BY WAY OF TAX CHALLANS TOWARDS PAYMENT OF TAXES ARE HEREBY ADMITTED AND CO NSEQUENT THERETO, THE APPEAL BY THE ASSESSEE AGAINST THE ORDER OF ASS ESSMENT NEED TO BE ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 9 ADMITTED AND ADJUDICATED BY THE CIT(APPEALS) ON MER ITS. IN THIS REGARD, USEFUL REFERENCE CAN BE DRAWN TO THE DECISION OF TH E COORDINATE BENCH IN CASE OF BHUMIRAJ CONSTRUCTIONS VS ADDITIONAL COMMISSIONER O F INCOME-TAX, RANGE 15(1) REPORTED IN 11 TAXMANN.COM 333 (MUMBAI) WHEREIN IT HAS BEEN HELD AS UNDER:- 9. THE OBJECTIVE BEHIND SECTION 249(4) IS TO ENSUR E THE PAYMENT OF TAX ON INCOME RETURNED BEFORE THE ADMISSION OF A PPEAL. IF SUCH PAYMENT AFTER THE FILING OF APPEAL BUT BEFORE IT IS TAKEN UP FOR DISPOSAL VALIDATES THE DEFECTIVE APPEAL, THEN THERE IS NO REASON AS TO WHY THE DOORS OF JUSTICE BE CLOSED ON A POOR ASS ESSEE WHO, COULD MANAGE TO MAKE THE PAYMENT OF TAX AT A LATER DATE, THE STIPULATION AS TO THE PAYMENT OF SUCH TAX ANTE THE FILING OF FIRST APPEAL IS ONLY DIRECTORY AND NOT MANDATORY. WHEREAS THE PAYMENT OF SUCH TAX IS MANDATORY BUT THE REQUIREMEN T OF PAYING SUCH-TAX BEFORE FILING APPEAL IS ONLY DIRECTORY. WH EN THE DEFECT IN THE APPEAL, BEING THE NON-PAYMENT OF SUCH TAX, IS R EMOVED, THE EARLIER DEFECTIVE APPEAL BECOMES VALID. ONCE WE CAL L AN APPEAL AS VALID, IT IS IMPLICIT THAT IT IS NOT TIME-BARRED. I T IMPLIES THAT ALL THE CONSEQUENCES WHICH FOLLOW ON THE REMOVAL OF DEFECT ARE THAT THE VALIDITY IS ATTACHED TO THE APPEAL FROM THE DATE WH EN IT WAS ORIGINALLY FILED AND NOT WHEN THE DEFECT IS REMOVED . 10. THE LD. AR SUBMITTED THAT THE ASSESSEE WAS FACI NG THE FINANCIAL CRUNCH WHICH LED TO THE NON-PAYMENT OF TA X ON THE RETURNED INCOME AT THE TIME REQUIRED BY THE LD. CIT (A). IT WAS CLAIMED THAT ON MAKING THE PAYMENT OF TAX, THE APPE AL OUGHT TO HAVE BEEN ADMITTED BY THE LD. CIT(A). HE RELIED ON THE ORDER PASSED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE C ASE OF ANANT R. THAKORE V. ASSTT. CIT [2006] 5 SOT 298 IN WHICH IT HAS BEEN HELD THAT THE CIT(A) WAS NOT JUSTIFIED IN DISMISSIN G THE APPEAL UNDER SECTION 249(4)(A) WHERE THE ASSESSEE'S APPLIC ATION FOR DOWNWARD RECTIFICATION OF SELF-ASSESSMENT TAX WAS S TILL PENDING. PER CONTRA THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 10 ANOTHER ORDER PASSED BY THE MUMBAI BENCH OF THE TRI BUNAL IN THE CASE OF BHARATKUMAR SEKHSARIA V. DY. CIT [2002] 82 ITD 512 IN WHICH THE ACTION OF THE CIT(A) IN NOT ADMITTING THE APPEAL WAS HELD TO BE JUSTIFIED. HE FURTHER RELIED ON THE JUDG MENT OF THE KARNATAKA HIGH COURT IN THE CASE OF D. KOMALAKSHI V . DY. CIT [2007] 162 TAXMAN 16. 12. ADVERTING TO THE FACTS OF THE INSTANT CASE WE F IND THAT THE ASSESSEE PAID THE TAX DUE ON INCOME RETURNED ALBEIT AFTER THE DISPOSAL OF APPEAL BY THE LD. CIT(A). ON SUCH PAYME NT, THE DEFECT IN THE APPEAL DUE TO NON-COMPLIANCE OF A DIRECTORY REQUIREMENT OF PAYING SUCH TAX BEFORE THE FILING OF THE APPEAL, ST OOD REMOVED. EX CONSEQUENTI THIS APPEAL SHOULD HAVE BEEN REVIVED BY THE LD. FIRST APPELLATE AUTHORITY. UNDER SUCH CIRCUMSTANCES WE SE T ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE O F THE LEARNED CIT(A) FOR DISPOSAL OF THE APPEAL ON MERITS. 15. THOUGH THE AFORESAID DECISION HAS BEEN RENDERED BY THE COORDINATE BENCH IN THE CONTEXT OF CLAUSE (A) OF SU B-SECTION (4) OF SECTION 249 OF THE ACT, THE LEGAL PROPOSITION LAID DOWN THEREIN, THAT THE PAYMENT OF TAX IS MANDATORY BUT THE REQUIREMENT OF PAYING SUCH TAX BEFORE FILING APPEAL IS ONLY DIRECTORY AND WHERE TH E DEFECT IN THE APPEAL, BEING THE NON-PAYMENT OF SUCH TAX, IS REMOVED, THE EARLIER DEFECTIVE APPEAL BECOMES VALID, APPLIES EQUALLY TO CLAUSE (B) SUB-SECTION (4) OF SECTION 249 OF THE ACT. THEREFORE, WHERE THE ADMITT ED TAXES ARE PAID AT A LATER POINT OF TIME, THEN THE APPEAL OF THE ASSES SEE SHOULD BE CONSIDERED AS PROPERLY INSTITUTED AND SHOULD BE HEA RD AND DECIDED BY THE CIT(APPEALS) ON MERITS. CONSIDERING THE SAME, T HE MATTER IS SET- ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECT IONS TO VERIFY AND CONSIDER THE PAYMENT OF TAXES TOWARDS DUE DISCHARGE OF THE ASSESSEES LIABILITY AS PER PROVISIONS OF SECTION 249(4)(B) OF THE ACT AND DECIDE THE ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 11 MATTER ON MERITS AFTER PROVIDING REASONABLE OPPORTU NITY TO THE ASSESSEE. ITA NO. 264/JP/2020 16. WE FIND THAT SIMILAR FACT PATTERN EXISTS IN CAS E OF APPEAL FILED BY THE ASSESSEE FOR A.Y 2014-15 WHEREIN THE APPEAL OF THE ASSESSEE WAS NOT ADMITTED BY THE LD CIT(A) ON ACCOUNT OF NON- PA YMENT OF TAXES EQUAL TO ADVANCE TAX AS PROVIDED U/S 249(4)(B) OF T HE ACT. 17. IN THIS REGARD, THE ASSESSEE HAS MOVED AN APPLI CATION SEEKING ADMISSION OF ADDITIONAL EVIDENCE BY WAY OF TAX CHAL LANS DISCLOSING PAYMENT OF RS 14.78 LACS OUT OF WHICH RS 978,987 HA S BEEN DEPOSITED ON 28.03.2019, THE DATE OF PASSING OF THE IMPUGNED ORDER AND RS. 5 LACS HAS BEEN DEPOSITED ON 25.02.2020 AFTER P ASSING OF THE IMPUGNED ORDER. THE ADDITIONAL EVIDENCE SO FILED B Y WAY OF TAX CHALLANS TOWARDS PAYMENT OF TAXES IS HEREBY ADMITTED AND CON SEQUENT THERETO, THE APPEAL BY THE ASSESSEE AGAINST THE ORDER OF ASS ESSMENT NEED TO BE ADMITTED AND ADJUDICATED BY THE CIT(APPEALS) ON MER ITS AND THE MATTER IS SET-ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO VERIFY AND CONSIDER THE PAYMENT OF TAXES TOWARDS DUE DISCHARGE OF THE ASSESSEES LIABILITY AS PER PROVISIONS OF SECTION 249(4)(B) OF THE ACT AND DECIDE THE MATTER ON MERITS AFTER PROVIDING REASONABLE OPPORTU NITY TO THE ASSESSEE. ITA NOS. 264 & 263/JP/2020 M/S JHUNJHUNU BALAJI MOTORS PVT LTD., JHUNJHUNU VS. ACIT, CIRCLE- JHUNJHUNU 12 IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS AND ARE ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/07/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/07/2021. *GANESH KUMAR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S JHUNJHUNU BALAJI MOTORS PVT. LTD ., JHUNJHUNU 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE- JHUNJHUNU 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NOS. 264 & 263/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR