Mr. Vernekar Pramod shrikant, Karad V. ITO, Wd.-1, Satara

ITA 279/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56413 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTUAMA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 279/PN/2010 (ASSTT. YEAR: 2004-05) MR. VERNEKAR PRAMOD SHRIKANT, ... APPELLANT A-23, RUKMINI GARDEN WAKHAN ROAD, KARAD DIST. SATARA PAN : ACBPV0740K V. INCOME-TAX OFFICER RESPONDENT WARD 1, SATARA APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY : MS. ANN KAPTUAMA ORDER PER I.C. SUDHIR, JM THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON THE GROUND THAT THE LD CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL O F THE ASSESSEE AS ON THE DATE OF RECEIPT OF THE APPEAL ORDER, THE TAX WAS ALREADY PA ID AND COMPLIANCE WAS MADE AS MANDATED BY SECTION 249(4)(B) OF THE ACT. 2. IN SUPPORT OF THE GROUND, THE LD. A.R. SUBMITTED THAT ASSESSEE HAS ALREADY PAID THE TAX DUE ON THE INCOME RETURNED BY HIM ON 2 5 TH NOVEMBER 2009, HENCE THE MATTER CAN BE SET ASIDE TO THE FIRST APPELLATE AUTH ORITY TO DISPOSE OFF THE FIRST APPEAL ON ITS MERIT. IN THIS REGARD, HE PLACED RELIANCE O N THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF D. KOMALAKSHI V/S. DCIT (2007), 292 ITR 99 (KAR.) 3. THE LD. D.R., ON THE OTHER HAND, OPPOSED THE APP EAL WITH THIS SUBMISSION THAT COMPLIANCE OF THE PROVISIONS U/S. 249(4)(A) OF THE ACT BY THE ASSESSEE BEFORE FILING THE FIRST APPEAL WAS MANDATORY WHICH CANNOT BE CURED AT THIS STAGE. ITA . NO 279/PN/2010 MR.VERNEKAR PRAMOD SHRIKANT A.Y. 2004-05 PAGE OF 3 2 4. HAVING GONE THROUGH THE ABOVE CITED DECISION OF HONBLE KARNATAKA HIGH COURT, WE FIND THAT UNDER ALMOST SIMILAR CIRCUMSTA NCES, THE HONBLE HIGH COURT WAS PLEASED TO JUSTIFY THE ACTION OF THE TRIBUNAL IN RE JECTING THE APPEAL SINCE THE TAX DUE IN THE LIGHT OF SECTION 249(4) WAS NOT PAID AT THE TIME OF THE FIRST APPEAL BEFORE THE LD CIT(A) BUT AT THE REQUEST OF ASSESSEE, 4 WEEKS TIME WAS GRANTED TO HIM TO MAKE OVER THE ADMITTED TAX WITH DIRECTION TO THE LD. CIT (A) TO CONSIDER THE FIRST APPEAL ON ITS MERITS. WE THUS FIND THAT THE HONBLE HIGH COU RT HAS BEEN PLEASED TO HOLD THAT THERE IS NO ERROR IN THE ORDER OF THE COMMISSIONER OR IN THE ORDER OF THE TRIBUNAL AND UPHELD THE SAME. THE HONBLE HIGH COURT, HOWEVER, TO MEET THE END OF JUSTICE, HAS ALLOWED THE ASSESSEE TO MAKE OVER THE ADMITTED TAX WITHIN 4 WEEKS AND DIRECTED THE COMMISSIONER (APPEALS) TO CONSIDER THE APPEAL ON IT S MERITS. HERE IN THE PRESENT CASE BEFORE US THE ASSESSEE HAS EXPLAINED THAT DUE TO FINANCIAL HARDSHIP THE ASSESSEE COULD NOT PAY THE ADMITTED TAX BEFORE FILI NG THE FIRST APPEAL BEFORE LD. CIT(A) IN VIEW OF S.249(4) OF THE ACT BUT NOW THE A SSESSEE HAS UNDISPUTEDLY PAID THE REQUIRED TAX DUE ON THE INCOME RETURNED BY HIM. SINCE THE ASSESSEE HAS BEEN NOW ABLE TO REMOVE THE DEFECT FROM ITS FIRST APPEAL (ON THE BASIS OF WHICH THE LD. CIT(A) HAD REFUSED TO ADMIT HIS FIRST APPEAL) WE TO MEET THE INTEREST OF JUSTICE, SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO C ONSIDER THE ADMISSION OF THE FIRST APPEAL AND DECIDE IT ON ITS MERITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE PARTIES. 5. THE GROUND AND APPEAL ARE THUS ALLOWED FOR STAT ISTICAL PURPOSES. ITA . NO 279/PN/2010 MR.VERNEKAR PRAMOD SHRIKANT A.Y. 2004-05 PAGE OF 3 3 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 26TH AUGUST 2011. SD/- SD/- (D.KARUNAKARA RAO) ACCOUNTANT MEMBER (I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 26TH AUGUST, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT -III, PUNE 4. THE CIT(A)- II, PUNE 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE