D.S.Karunakar Reddy, Hyd, Hyderabad V. DCIT, Central Circle-6, Hyderabad

ITA 402/HYD/2011

• Counselvise Citation: 40222514 RSA 2011
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: V SHIV KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA 402/HYD/2011 ASSESSMENT YEAR 2008-09 M/S. D.S. KARUNAKAR REDDY, HYDERABAD. ( PAN AHCPC 0573C) VS DY. COMMISSIONER OF INCOME - TAX, CIRCLE-6, HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. SHIV KUMAR RESPONDENT BY : SHRI V. SRINIVAS O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED CIT (A)-I, HYDERABAD, D ATED 7.3.2011 AND IT PERTAINS TO THE ASSESSMENT YEAR 2008-09. 2. GROUNDS RAISED BY HE ASSESSEE IN THIS APPEAL AR E AS UNDER:- 1. THE ORDER OF THE CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LD. CIT (A) ERRED IN DISMISSING THE APPEAL IN L IMINE WITHOUT CONSIDERING THE GROUNDS RAISED BY THE APPELLANT ON MERITS. ITA 402/HYD/2011 M/S. D.S. KARUNAKAR REDDY, HYD. 2 3. THE CIT (A) ERRED IN HOLDING THAT THE WORD TAX MENTIONED IN SECTION 249 (4) INCLUDES TAX AND INTER EST. THE CIT (A) OUGHT TO HAVE SEEN THAT THE APPELLANT ALREADY PAID TAX BEFORE THE DATE OF FILING OF APPEA L AND WHAT WAS REMAINING WAS ONLY INTEREST. 4. THE CI (A) OUGHT TO HAVE SEEN THAT EVEN SUCH INTERE ST WAS PAID ON 30-4-2010 AND OUGHT TO HAVE CONDONED THE DELAY TREATING THE SAME AS DELAY IN FILING THE APPEAL. 5. THE CIT (A) ERRED IN NOT ADMITTING THE APPEAL ON TH E GROUND THAT TAX WAS NOT PAID AS CONTEMPLATED U/S 249(4) OF THE IT ACT AND FURTHER ERRED IN NOT CONSIDERING EACH GROUND OF APPEAL. 6. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY IS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE WITHOUT CONSIDERING THE GROUNDS RAISED BY THE ASSES SEE ON MERITS AND ERRED IN HOLDING THAT THE WORD TAX MENTIONED IN S ECTION 249(4) INCLUDES TAX AND INTEREST. IT IS FURTHER SUBMITTED THAT THE FIRST APPELLATE AUTHORITY OUGHT TO HAVE SEEN THAT THE ASSESSEE ALREADY PAID T AX BEFORE THE DATE OF FILING OF APPEAL AND WHAT WAS REMAINING WAS ONLY IN TEREST AND SUCH INTEREST WAS ALSO PAID ON 30-4-2010 AND HE SHOULD H AVE CONDONED THE DELAY TREATING THE SAME AS DELAY IN FILING THE APPE AL. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPP OSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE SUBMITTED THAT ITA 402/HYD/2011 M/S. D.S. KARUNAKAR REDDY, HYD. 3 THE ASSESSEE SHOULD HAVE COMPLIED WITH THE PROVISIO NS OF SECTION 249(4) OF THE ACT BEFORE THE DISPOSAL OF THE APPEAL BY THE CIT (A) AND HE RELIED ON THE ORDER OF THE FIRST APPELLATE AUTHORITY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE FIRST APP ELLATE AUTHORITY OUGHT TO HAVE SEEN THAT THE ASSESSEE ALREADY PAID TAX BEF ORE THE DATE OF FILING OF APPEAL AND WHAT WAS REMAINING WAS ONLY INTEREST AND SUCH INTEREST WAS ALSO PAID ON 30-4-2010. WE FIND THAT THE PROVI SIONS OF SECTION 249(4) OF THE ACT CATEGORICALLY STIPULATE PAYMENT O F ADMITTED TAX ON THE RETURNED INCOME AS A PRE-REQUISITE AND MANDATORY CO NDITION FOR ADMISSION OF AN APPEAL. THIS PRE-CONDITION WAS MADE APPLICABLE TO ALL THE APPELLATE AUTHORITIES. THE PROVISIONS OF SECTI ON 249(4) OF THE ACT, AS THEY STAND SUBSEQUENT TO 1.4.1989 DO NOT LEAVE ANY DISCRETION IN THE APPELLATE AUTHORITY, SINCE SUCH A DISCRETION EARLIE R VESTED IN THE APPELLATE AUTHORITIES WAS WITHDRAWN BY DIRECT TAX L AWS (AMENDMENT) ACT, 1989 WITH EFFECT FROM 1.4.1989. THE UNDISPUTED FACT THAT THE ASSESSEE HAD PAID ENTIRE TAX AND INTEREST AS ON 30- 4-2010 AND THE FIRST APPELLATE AUTHORITY, IN OUR CONSIDERED VIEW, SHOULD HAVE CONDONED THE DELAY IN PAYMENT AND DISPOSED OFF THE APPEAL ON MER IT. AFTER CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTA NCES OF THE CASE, WE ARE OF THE VIEW THAT THE ISSUE BEFORE THE CIT (A) S HOULD BE DECIDED ON MERITS THEREOF AND ACCORDINGLY, THE IMPUGNED ORDER OF THE CIT (A) IS SET ASIDE AND MATTER IS RESTORED TO HIS FILE WITH A DIR ECTION TO ADMIT THE APPEAL OF THE ASSESSEE, AFTER TAKING ON RECORD THE EVIDENCES OF TDS DEPOSITED BY THE ASSESSEE AND THEN TO DECIDE THE AP PEAL BEFORE HIM IN ITA 402/HYD/2011 M/S. D.S. KARUNAKAR REDDY, HYD. 4 ACCORDANCE WITH LAW ON MERITS THEREOF, AFTER ALLOWI NG REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE DI RECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 16 -9- 2011. SD/- SD/- (G.C. GUPTA) (AKBER BASHA) VICE PRESIDENT . ACCOUNTANT MEMBER. DT/- 16-9-2011. COPY FORWARDED TO: 1. SHRI S. RAMA RAO, ADVOCATE, FLAT NO.10 2, DOOR NO.3 - 6 - 643, SHRIYAS ELEGANCE STREET NO.9, HIMAYATNAGAR, HYDERA BAD. 2. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 6, HYDERABAD. 3. CIT (A) - I , HYDERABAD. 4. CIT , AP - I, HYDERABAD. 5. THE D.R., ITAT, HYDERABAD. JMR*