M/s Enso Secutrack Limited, Hyderabad V. ACIT, Circle 2(2), Hyderabad

ITA 363/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66362 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G V HEMALATHA
• Assessee Lawyers: P BALAKRISHNA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.363/ HYD/2012 : ASSES SMENT YEAR 2008-09 M/S. ENSO SECUTRACK LIMITED, HYDERABAD [PAN - AAACT 7537 J] V/S. ASST. COMMISSIONER OF INCOME-TAX CIRCLE 2(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.BALAKRISHNA RESPONDENT BY : SMT. G.V. HEMALATHA, CIT-DR DATE OF HEARING 10 .10. 2012 DATE OF PRONOUNCEMENT 10.10.2012 O R D E R PER SANJAY ARORA, ACCOUNTANT MEMBER: THIS IS AN APPEAL BY THE ASSESSEE, DIRECTED AGAINS T THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, HYDERABAD (CIT(A) FOR S HORT) DATED 22.12.2011, DISMISSING ITS APPEAL CONTESTING ITS ASSESSMENT UNDER SECTION 143 (3) OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 23.12.2010 FOR THE ASSESSMENT YE AR (AY) 2008-09, DETERMINING ITS INCOME FOR THE SAID YEAR AT RS.40,70,46,211. 2. THE SHORT QUESTION BEFORE US IS THE MAINTAINABIL ITY OF THE IMPUGNED ORDER, ASSAILED IN APPEAL BEFORE US BY THE ASSESSEE. THIS IS AS, EVEN THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS VIDE ITS APPEAL MEMO, THE FIRST APPELLATE AUTHORITY HAS DISMISSED ITS APPEAL IN LIMINE , SOLELY ON THE GROUND OF IT BEING NOT MAINTAINABLE IN VIEW OF SEC. 249(4) OF THE ACT. ITA NO.363/HYD/2012 M/S. ENSO SECUTRACK LIMITED, HYDERABAD 2 3.1 THE PRIMARY FACTS ARE NEITHER DENIED NOR IN DIS PUTE. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE RELEVANT YEAR ON 02.12.2009 AT AN INCOME OF RS.976.77 LAKHS, AS AGAINST WHICH ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.4070.46 LAKHS. 3.2 AN APPEAL WAS SOUGHT TO BE PREFERRED BEFORE THE LEARNED CIT(A) ON 31.01.2011 BY FILING THE REQUISITE FORM IN FORM 35. EVEN THOUGH THE RELE VANT COLUMN THEREIN, CALLING FOR AN ANSWER AS TO THE PAYMENT OF THE ADMITTED TAX, I.E., ON THE RE TURNED INCOME, WAS ANSWERED IN THE AFFIRMATIVE, THE FACT WAS THAT EVEN UP TO 16.12.2011 , THE LAST DATE OF HEARING BEFORE THE LD. CIT(A), A ND ABOUT ELEVEN MONTHS LATER, THERE WAS ADMITTEDLY A SHORT-F ALL IN THE PAYMENT OF SELF-ASSESSMENT TAX BY RS.1.41 CRORES . THOUGH THE ASSESSEE CITED FINANCIAL CONSTRAINTS A S THE REASON FOR NON-PAYMENT; PRAYING FOR FURTHER TIME FOR SUCH PAYMENT, THE LD. CIT(A) DISMISSED ITS APPEAL AS NOT MAINTAINABLE IN VIEW OF S. 249(4), WHICH READS AS F OLLOWS, CITING AND DRAWING UPON VARIOUS JUDICIAL PRONOUNCEMENTS IN THE MATTER, VIZ. S.ALAGARSWAMY V. ITO (2008) 296 ITR 43 (MAD); CIT V. SMT. G.A.SAMANTHALAKAMANI (2003) 259 ITR 215 (MAD); D. KOMALAKSHI V. DCIT (2007) 292 ITR 99 (KAR); AND SUSHIL THOMAS ABRAHAM V. ACIT & ANR . (2009) 308 ITR 346 (KER ): 249. FORM OF APPEAL AND LIMITATION (1). TO (3) (4) NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNLE SS 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 ASSESSEE, THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE TAX WHICH WAS PAYABLE BY HIM.; PROVIDED THAT, IN A CASE FALLING UNDER CLAUSE (B) . 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. BEFORE US, THE ASSESSEE, WHOSE CASE FALLS U/S. 249(4)(A), ABYSMALLY FAILED T O SHOW ANY INFIRMITY IN THE IMPUGNED ORDER. ITA NO.363/HYD/2012 M/S. ENSO SECUTRACK LIMITED, HYDERABAD 3 EVEN AS AFFIRMED AND CLARIFIED BY THE HIGHER COURTS OF LAW, TO SOME DECISIONS BY WHICH, REFERENCE HAS BEEN MADE BY THE LD. CIT(A) IN HIS OR DER, NON-PAYMENT OF ADMITTED TAX EXCLUDES THE JURISDICTION OF THE FIRST APPELLATE AUTHORITY I N ADMITTING AN APPEAL FILED BEFORE HIM. IN OTHER WORDS, NON-PAYMENT OF ADMITTED TAX LEADS TO A JURIS DICTIONAL INFIRMITY IN THE ASSESSEES APPEAL, WHICH ADMITTEDLY PERSISTS EVEN TO DATE; THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CONCEDING TO A SHORT-FALL IN THE PAYMENT OF ADMITTE D, UNDISPUTED TAX AT RS.93 LAKHS EVEN AS ON DATE, EVEN AS IT IS ARGUABLE IF THE SAME WOULD BE O F ANY MOMENT. UNDER THE CIRCUMSTANCES; THE LAW IN THE MATTER BEING CLEAR, WITH THE FACTS BEING UNDISPUTED, WE UPHOLD THE IMPUGNED ORDER. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. PRONOUNCED IN THE COURT ON 10.10.2012 SD/- SD/- (SAKTIJIT DEY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/- OCTOBER 10, 2012 B.V.S / COPY FORWARDED TO: 1. M/S. ENSO SECUTRACK LIMITED, 13-6-436/A/26, LAKSHMI NAGAR COLONY, MEHDIPATNAM, HYDERABAD 500 028. 2. 3. 4 5. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 2(2), HYDE RABAD COMMISSIONER OF INCOME-TAX(APPEALS)-III, HYDERABAD COMMISSIONER OF INCOME-TAX-II, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD.