IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA. NO. 572/HYD/2015 ASSESSMENT YEAR : 2009-10 AKR CONSTRUCTION LTD., BANJARA HILLS, HYDERABAD [PAN: AAFCA0649H] VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI V. RAGHAVENDRA RAO, AR FOR REVENUE : SMT. G. APARNA RAO, CIT - DR DATE OF HEARING : 28 - 07 - 2015 DATE OF PRONOUNCEMENT : 30 - 0 7 - 2015 ORDER PER B. RAMAKOTAIAH, A.M. THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XI, HYDERABAD DATED 16-02-2 015. THE ONLY ISSUE IN THIS APPEAL IS WITH REFERENCE TO DISMISSAL OF THE APPEAL AS NOT MAINTAINABLE INVOKING THE PROVISIONS OF SECTION 249 (4) OF THE INCOME TAX ACT, [ACT] AS ASSESSEE HAD NOT PAID THE ADMITTED TA XES. 2. BRIEFLY STATED, ASSESSEE IS A DOMESTIC COMPANY I N WHICH PUBLIC ARE NOT SUBSTANTIALLY INTERESTED. ASSESSEE FILED RETUR N OF INCOME ADMITTING AN AMOUNT OF RS.11,50,33,760/- CONSEQUENT TO SEARCH AND SEIZURE PROCEEDINGS ON 06-10-2010. ASSESSEE COULD NOT PAY ADMITTED TAXES AS SOME OF THE AMOUNTS WERE SEIZED AND THEY HAVE SOME FINANCIAL 2 ITA. NO. 572/HYD/2015 AKR CONSTRUCTION LTD., DIFFICULTIES. IN THE SCRUTINY ASSESSMENT, ASSESSIN G OFFICER (AO) MADE CERTAIN ADDITIONS RAISING DEMAND TO RS.6,15,76,682/ -. WHEN APPEAL WAS PREFERRED BEFORE THE CIT(A), THE CIT(A) DID NOT ENT ERTAIN THE APPEAL AS ASSESSEE HAS NOT PAID THE ADMITTED TAXES AS PER THE PROVISIONS SECTION 249(4) AND ACCORDINGLY, APPEAL WAS NOT ADMITTED AND DISMISSED IN LIMINE . 3. LD. COUNSEL FILED A PAPER BOOK AND RELYING ON VA RIOUS CASE LAW SUBMITTED THAT ASSESSEE HAS PAID THE TAXES OF RS.70 ,70,428/- DUE AS SELF-ASSESSMENT TAX ON 11-04-2015 AFTER THE DISMISS AL OF APPEAL BY THE CIT(A). IT WAS SUBMITTED THAT CO-ORDINATE BENCH IN THE CASE OF M/S. KANCHENJUNGA GREENLANDS PVT. LTD. AND OTHERS VS. DY . CIT IN ITA NOS. 238 TO 241/HYD/2014 DT. 29-10-2014 HAS CONSIDERED S IMILAR ISSUE AND SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. IN ADDITION, LD. COUNSEL ALSO RELIED ON THE JUDGMENT O F HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRAMOD KUMAR DANG IN I TA NO. 62/2001 DT. JANUARY, 2014 FOR THE PROPOSITION THAT IF THE FUNDS ARE WITH DEPARTMENT, ASSESSEES REQUEST FOR ADJUSTMENT OF THE AMOUNT WAS BONAFIDE AND ASSESSEE CANNOT BE DENIED A HEARING BEFORE THE DISM ISSAL OF THE APPEAL. LD. COUNSEL ALSO RELIED ON THE DECISION OF CO-ORDIN ATE BENCH IN THE CASE OF SRI T. SRISAILAM YADAV VS. ITO IN ITA NOS. 1694 TO 1697/HYD/2012 DT. 14-08-2013, WHEREIN CO-ORDINATE BENCH RELYING O N THE PRINCIPLES LAID DOWN BY HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. K. SATISH KUMAR SINGH [19 TAXMANN.COM 154 (KAR)] HAS RESTORED THE APPEAL TO THE FILE OF LD. CIT(A) FOR FRESH CONSIDERATION. IT WAS HIS SUBMISSION THAT SINCE ASSESSEE HAS REMITTED THE TAXES NOW, THE APPE AL SHOULD BE RESTORED. 3 ITA. NO. 572/HYD/2015 AKR CONSTRUCTION LTD., 4. LD. DR HOWEVER, SUBMITTED THAT CIT(A) WAS WITHIN HER POWERS IN DISMISSING THE APPEAL AS ASSESSEE HAS NOT PAID THE ADMITTED TAX AND HAS REMITTED AFTER THE DISMISSAL. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE RECORD. AS FAR AS THE ORDER OF CIT(A) IN INVOKING THE PROVI SIONS OF SECTION 249(4)(A), THE SAME CANNOT BE FAULTED AS ASSESSEE HAD NOT REMITTED THE ADMITTED TAX. HOWEVER, ASSESSEES CONTENTION THAT IT HAS FINANCIAL DIFFICULTY AT THAT TIME FOR PAYMENT OF TAX WAS NOT EXAMINED BY THE CIT(A). THE CO-ORDINATE BENCH IN THE CASE OF OF M/S. KANCHE NJUNGA GREENLANDS PVT. LTD. AND OTHERS VS. DY. CIT IN ITA NOS. 238 TO 241/HYD/2014 DT. 29-10-2014 (SUPRA), HAS CONSIDERED SIMILAR ISSUE AN D RELIED ON VARIOUS OTHER CO-ORDINATE BENCH DECISIONS TO SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND REMITTED THE MATTER BACK TO CIT(A) WITH A DIRECTION TO ADMIT THE APPEAL AND TO ADJUDICATE THE ISSUE AFRESH. 6. HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. K. SATISH KUMAR SINGH [19 TAXMANN.COM 154 (KAR)] (SUPRA), HAS CONSIDERED THE PROVISIONS AND HELD AS UNDER: THEREFORE, FROM SUB-SECTION (4) OF SECTION 249, IT IS CLEAR WHEN THE RETURN HAS BEEN FILED BY THE ASSESSEE, UNLESS T HE ASSESSEE PAYS THE ADMITTED TAX DUE ON THE INCOME RETURNED BY HIM, NO APPEAL SHALL BE ENTERTAINED AND ADMITTED. THEREFORE, IF ADMITTE D TAX IS NOT PAID WHICH FALLS UNDER CLAUSE (A) OF SUB-SECTION (4) OF SECTION 249, THE COMMISSIONER (APPEALS) IS NOT VESTED WITH ANY POWER TO WAIVE PAYMENT OF SUCH ADMITTED TAX AND ENTERTAIN THE APPE AL. THE ORDER OF DISMISSING THE APPEAL IN SUCH CIRCUMSTANCES IS A UTOMATIC. THEREFORE, THE APPEAL DISMISSED UNDER CLAUSE (A) OF SUB-SECTION (4) OF SECTION 249 FOR NON-PAYMENT OF ADMITTED TAX DUE ON THE INCOME RETURNED BY THE ASSESSEE CANNOT BE FOUND FAULT WITH . HOWEVER, IF AFTER SUCH DISMISSAL, IF THE ASSESSEE PAYS THE ADMI TTED TAX AND REQUESTS THE APPELLATE AUTHORITY TO RECALL THE ORDE R DISMISSING THE APPEAL IN LIMINE AND TO CONSIDER THE APPEAL ON MERI TS UNDER THE AFORESAID PROVISION OR UNDER ANY OTHER PROVISION OF THE ACT, THERE IS NO PROHIBITION OR LEGAL IMPEDIMENT FOR THE APPELLAT E AUTHORITY TO 4 ITA. NO. 572/HYD/2015 AKR CONSTRUCTION LTD., RECALL ITS EARLIER ORDER AND ENTERTAIN THE APPEAL A ND DECIDE THE SAME ON MERITS. 7. NOW, ASSESSEE HAS REMITTED THE ADMITTED TAX AND FURNISHED THE CHALLAN IN SUPPORT OF THE SAME. WE ARE OF THE OPIN ION THAT ASSESSEES APPEAL SHOULD BE CONSIDERED ON MERITS. FOR THIS PUR POSE, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND RESTORE THE AP PEAL MEMO FOR FRESH CONSIDERATION. SINCE THE APPEAL WILL BE DEEMED TO H AVE BEEN FILED ON THE DATE ADMITTED TAX HAS BEEN PAID, ASSESSEE IS DIRECT ED TO MAKE NECESSARY CONDONATION PETITION AND CIT(A) SHOULD CONSIDER IT ON ITS MERITS. CIT(A) IS ALSO DIRECTED TO EXAMINE THE APPEAL ON MERITS AF TER GRANTING THE NECESSARY CONDONATION. ASSESSEES GROUNDS ARE CONS IDERED ALLOWED ACCORDINGLY. 8. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JULY, 2015 SD/- SD/- (ASHA VIJAYARAGHAVAN) (B. RA MAKOTAIAH) JUDICIAL MEMBER AC COUNTANT MEMBER HYDERABAD, DATED 30 TH JULY, 2015 TNMM 5 ITA. NO. 572/HYD/2015 AKR CONSTRUCTION LTD., COPY TO 1. AKR CONSTRUCTION LTD., 8 - 2 - 684/J3, RMN HOUSE, 1 ST FLOOR, KANAKADURGA TEMPLE LANE, ROAD NO.12, BANJARA HILLS, HYDERABAD. C/O. I.R. RAO & COMPANY, CHARTERED ACCOUNTANTS, H.NO.8-3-222/29, C-69, MADHURANAGAR, HYDERABAD. 2. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1(1), POSTNET BHAWAN, TILAK ROAD, HYDERABAD. 3. THE CIT(APPEALS)-XI, HYDERABAD. 4. THE PR.CIT (CENTRAL), HYDERABAD. 5. D.R. I.T.A.T. HYDERABAD. 6. GUARD FILE.