Vikas Verma, Delhi V. ACIT, New Delhi

ITA 636/DEL/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5548 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 08-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Keywords: Opportunity of being heard; Set aside
• Section: 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBE R & SHRI M.L. MEENA, ACCOUNTANT MEMBER ITA NO. 636/DEL/2016 ASSESSMENT YEAR: 2012-13 VIKAS VERMA C/O KAPIL GOEL ADV., F-26/124, SECTOR-7, ROHINI, DELHI. AETPV0243F VS ACIT CIRCLE 34(1) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SH. KAPIL GOEL, ADV. REVENUE BY MS. NAINA SOIN KAPIL, SR. DR ORDER PER SHRI BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-12, NEW DELHI DATED 04.12.2015 FOR AY 2012- 13. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED RETURN OF INCOME DECLARING INCOME OF RS. 1,18,21,664/- ON 30.03.2011. THE ASSESSEE IN APPEAL BEFORE THE LD. CIT(A) MENTIO NED IN FORM NO. 35 THAT THE TAX DUE ON THE RETURNED INCOME HAS BEEN PAID IN FULL, HOWEVER, THE LD. CIT(A) NOTICED THAT AN AMOUN T OF RS. 57,34,310/- IS PAYABLE BY THE ASSESSEE. THE LD.CIT (A), THEREFORE, DATE OF HEARING 06.11.2018 DATE OF PRONOUNCEMENT 06.11.2018 2 ITA NO. 636/DEL/ 2016 NOTED THAT ASSESSEE HAS NOT PAID THE FULL DEMAND ON THE RETURNED INCOME. THE ASSESSEE WAS INFORMED OF THIS FACT THA T THE TAXES DUE ON THE RETURNED INCOME HAVE NOT BEEN DEPOSITED BY T HE ASSESSEE AT THE TIME OF FILING THE APPEAL U/S 246A OF THE ACT. THE ASSESSEE SUBMITTED THAT ASSESSEE WAS DEPOSITING THE DEMAND N OW. THE LD. CIT(A), THEREFORE, NOTED THAT THE ASSESSEE HAS NOT DEPOSITED THE ENTIRE AMOUNT OF TAX DUE ON THE RETURNED INCOME BEF ORE OR AT THE TIME OF FILING OF THIS APPEAL, THEREFORE, APPEAL OF ASSESSEE WAS NOT ADMITTED U/S 249(4)(A) OF THE ACT. THE APPEAL WAS ACCORDINGLY DISMISSED. 3. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT LETTER D ATED 01.12.2015 WAS FILED BEFORE THE LD. CIT(A) PRIOR TO PASSING OF THE IMPUGNED ORDER TO SHOW THAT TAX DUE ON RETURNED INC OME HAVE BEEN PAID. HE HAS ALSO MENTIONED IN THE SAME LETTE R THAT ENTIRE TAXES HAVE BEEN PAID ON RETURNED INCOME AND COPY OF THE BANK STATEMENT IS FILED WITH THE SAME LETTER. HE HAS, T HEREFORE, PRAYED THAT LD. CIT(A) MAY BE DIRECTED TO DECIDE THE APPEA L OF ASSESSEE ON MERITS. ON THE OTHER HAND, LD. DR RELIED UPON THE IMPUGNED ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ITAT MUMBAI BENCH IN THE CASE OF BHUMIRAJ CONSTRUCTIONS VS. AD DL. CIT 131 ITD 406 IN PARA 9 HELD AS UNDER: 9. THE OBJECTIVE BEHIND SECTION 249(4) IS TO ENSURE TH E PAYMENT OF TAX ON INCOME RETURNED BEFORE THE ADMISS ION OF APPEAL. IF SUCH PAYMENT AFTER THE FILING OF APPEAL BUT BEFORE IT IS TAKEN UP FOR DISPOSAL VALIDATES THE DE FECTIVE 3 ITA NO. 636/DEL/ 2016 APPEAL, THEN THERE IS NO REASON AS TO WHY THE DOORS OF JUSTICE BE CLOSED ON A POOR ASSESSEE WHO, COULD MAN AGE TO MAKE THE PAYMENT OF TAX AT A LATER DATE. THE STIPU LATION AS TO THE PAYMENT OF SUCH TAX ANTE THE FILING OF FI RST 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 DIRECT ORY. WHEN THE DEFECT IN THE APPEAL, BEING THE NON-PAYMEN T OF SUCH TAX, IS REMOVED, THE EARLIER DEFECTIVE APPEAL BECOMES VALID. ONCE WE CALL AN APPEAL AS VALID, IT IS IMPL ICIT THAT IT IS NOT TIME-BARRED. IT IMPLIES THAT ALL THE CONSEQ UENCES WHICH FOLLOW ON THE REMOVAL OF DEFECT ARE THAT THE VALIDITY IS ATTACHED TO THE APPEAL FROM THE DATE WHEN IT WAS ORIGINALLY FILED AND NOT WHEN THE DEFECT IS REMOVED . THE TRIBUNAL FURTHER HELD IN THIS CASE IN PARA 12 A S UNDER: 12. ADVERTING TO THE FACTS OF THE INSTANT CASE WE FIND THAT THE ASSESSEE PAID THE TAX DUE ON INCOME RETURN ED ALBEIT AFTER THE DISPOSAL OF APPEAL BY THE LD. CIT( A). ON SUCH PAYMENT, THE DEFECT IN THE APPEAL DUE TO NON- COMPLIANCE OF A DIRECTORY REQUIREMENT OF PAYING SUC H TAX BEFORE THE FILING OF THE APPEAL, STOOD REMOVED. EX CONSEQUENTI THIS APPEAL SHOULD HAVE BEEN REVIVED BY THE LD. FIRST APPELLATE AUTHORITY. UNDER SUCH CIRCUMST ANCES WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MAT TER TO THE FILE OF THE LD. CIT(A) FOR DISPOSAL OF THE APPE AL ON MERITS. 5. ACCORDING TO THE SUBMISSIONS OF THE ASSESSEE THE TAX ON THE RETURNED INCOME HAVE BEEN PAID AND EVEN INTIMATION WAS GIVEN TO THE LD. CIT(A) PRIOR TO PASSING OF THE IMPUGNED ORD ER. THEREFORE, SUCH FACTS SHOULD HAVE BEEN VERIFIED BY THE LD. CIT (A) AND IN CASE THE TAX ON RETURNED INCOME HAVE BEEN DEPOSITED THEN LD. CIT(A) SHALL HAVE TO DECIDE THE APPEAL ON MERITS. CONSIDE RING THE FACTS OF THE CASE IN THE LIGHT OF THE ORDER OF THE TRIBUNAL IN THE CASE OF 4 ITA NO. 636/DEL/ 2016 BHUMIRAJ CONSTRUCTIONS (SUPRA), WE SET ASIDE THE OR DER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF THE ASSESSEE TO HI S FILE WITH DIRECTION TO VERIFY THE PAYMENT OF TAXES ON RETURNE D INCOME AND IN CASE THE AMOUNT HAVE ALREADY BEEN PAID, LD. CIT(A) SHALL DECIDE THE APPEAL ON MERITS AS PER LAW BY GIVING REASONABL E SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M.L. MEENA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 06.11.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 636/DEL/ 2016