M/S THE SOLUTIONS, Jaipur V. ` TIO, Jaipur

ITA 673/JPR/2011

• Counselvise Citation: 67323114 RSA 2011
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R C SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, B, JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO.673/JP/11 ASSESSMENT YEAR : 2008-09 M/S.THE SOLUTIONS, VS. THE INCOME TAX OFFICER, JAIPUR. WARD-6(1), JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH.R.C.SHAH RESPONDENT BY: SHRI SUNIL MATHUR DATE OF HEARING : 03.10.2011 DATE OF PRONOUNCEMENT: 14.10.2011. ORDER DATE OF ORDER :14.10.2011. PER R.K.GUPTA,J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE CIT(A) FO R THE ASSESSMENT YEAR 2008-09. 2. THE MAIN EFFECTIVE GROUND OF THE ASSESSEE IS AGA INST THE DISMISSING THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE APPEAL IS NOT M AINTAINABLE. 3. CERTAIN ADDITION WERE MADE WHICH WERE CHALLENGED BEFORE CIT(A). THE CIT(A) NOTED THAT ADMITTED TAX OF RS.4,05,506/- WAS NOT PA ID ON THE RETURN INCOME, THEREFORE, A SHOW CAUSE NOTICE WAS GIVEN TO THE ASSESSEE THAT WH Y THE APPEAL OF THE ASSESSEE BE DISMISSED IN LIMINE AS IN VIEW OF PROVISION OF SECT ION 249(4)(A) THE APPEAL IS NOT MAINTAINABLE. IT WAS SUBMITTED THAT DUE TO COMPUTER MISTAKE WRITTEN FIGURE HAS BEEN READ WRONGLY. EXPLANATION WAS GIVEN TO THE A.O. HOWEVER A.O. HAD NOT ACCEPTED THE EXPLANATION. IN VIEW OF BUY PEACE, THE ASSESSEE AD MITTED THE - 2 - WRONG FIGURE AS INCOME AND ON THIS AMOUNT THE TAX W AS NOT PAID. THE COMMENTS WERE SOUGHT FROM THE A.O. IN HIS COMMENTS THE A.O. HAS S TATED THAT SINCE ADMITTED TAX HAS NOT BEEN PAID THEREFORE APPEAL OF THE ASSESSEE IS NOT M AINTAINABLE. IN REPLY IT WAS SUBMITTED THAT THE DEPARTMENT HAS ALREADY RECOVERED THE DUE T AX OF RS.5,92,862/- AGAINST THE ADMITTED TAX OF RS.4,05,506/- ON 09.03.2011. A COPY OF BANK STATEMENT WAS ALSO FILED. RELIANCE WAS PLACED ON VARIOUS CASE LAWS MENTIONED IN THE ORDER OF THE CIT(A). HOWEVER LD.CIT(A) WAS NOT SATISFIED WITH ARGUMENT OF LD.A.R ., THEREFORE, HE DISMISSED OF THE APPEAL OF THE ASSESSEE HOLDING THAT THE SAME IS NOT MAINTAINABLE. WHILE HOLDING SO LD.CIT(A) HAS CONSIDERED VARIOUS DECISIONS OF THE T RIBUNAL WHEREIN IT WAS HELD THAT IF THE ADMITTED TAX IS NOT PAID THEN THE APPEAL IS NOT MAINTAINABLE. NOW THE ASSESSEE IS APPEAL HERE BEFORE TRIBUNAL. CONTENTION RAISED BEFO RE LD.CIT(A) WERE REITERATED HERE BEFORE TRIBUNAL. ON THE OTHER HAND LD.D.R. PLACED R ELIANCE ON THE ORDER OF THE CIT(A). 4. AFTER CONSIDER THE RIVAL SUBMISSION AND PERUSING THE MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCESS IN ITS APPEAL. TH ERE IS NO DISPUTE THAT THE ASSESSEE HAS PAID THE ADMITTED TAX BEFORE DISPOSING THE APPEAL B Y LD.CIT(A). AN AMOUNT OF RS.5,92,862/- WAS RECOVERED BY THE DEPARTMENT THROU GH BANK ACCOUNT OF THE ASSESSEE MAINTAINED IN ICICI BANK LTD. ON 09.03.2011. COPY O F THE SAME IS PLACED AT 40 OF THE PAPER BOOK. THE APPEAL WAS DISPOSED OFF BY LD.CIT (A) VIDE ORDER DATED 20.06.2011. 5. IN CASE OF BHOOMI RAJ CONSTRUCTION 131 ITD 406 T HE MUMBAI BENCH OF THE TRIBUNAL HAS HELD THAT WHEN DEFECTS HAVE BEEN REMOV ED THEN APPEAL HAS TO BE ENTERTAIN ON MERIT. IN THIS CASE ALSO THE TAX WAS NOT PAID. THE APPEAL OF THE ASSESSEE WAS DISMISSED AS NON MAINTAINABLE. THE TRIBUNAL BY PASSING A DETA ILED ORDER AFTER CONSIDERING VARIOUS CASE LAWS RELIED UPON BY COUNSEL OF THE ASSESSEE AN D BY DEPARTMENT REPRESENTATIVES. THE TRIBUNAL HAS HELD THAT ADVERTING TO THE FACTS OF T HE INSTANT CASE WE FIND THAT THE ASSESSEE PAID THE TAX DUE ON INCOME RETURNED ALBE IT AFTER THE DISPOSAL OF APPEAL BY THE LD.CIT(A). ON SUCH PAYMENT, THE DEFECT IN THE APPEA L DUE TO NON-COMPLIANCE OF A DIRECTORY REQUIREMENT OF PAYING SUCH 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 CIRCUMSTANCES WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR DISPOSAL OF THE APPE AL ON MERITS. 6. IN CASE OF RAMA BODY BUILDER 250 ITR 825 THE HON BLE DELHI HIGH COURT HAS HELD THAT THE APPEAL WAS HEARD BY THE APPELLATE AS SISTANT COMMISSIONER ON SEVERAL DATES, I.E. MARCH 10, 1977, AUGUST 28, 1977, NOVEMB ER 4, 1977, AND ON NONE OF THESE DATES DEFICIENCY IN THE ASSESSEES APPEAL WAS POINT ED OUT. BEFORE THE ISSUE OF THE SHOW CAUSE NOTICE, THE ASSESSEE HAD MADE THE DEPOSIT. TH E PROVISO TO SUB-SECTION (4) OF SECTION 249 PERMITTED DEPOSIT OF DEFICIT TAX IN CASE IT HAD NOT BEEN DONE EARLIER. THEREFORE, THE APPEAL OF THE ASSESSEE WAS TO BE HEARD ON THE MERIT S. 7. SIMILAR VIEW HAVE BEEN EXPRESSED BY VARIOUS OTHE R HIGH COURT AND VARIOUS BENCHES OF TRIBUNAL, COPIES OF THESE ORDER ARE PLAC ED IN COMPILATION. SINCE THE ASSESSEE HAD PAID TAX DUE ON THE RETURN INCOME BEFORE DISPOS ING THE APPEAL BY LD.CIT(A), THE APPEAL OF THE ASSESSEE IS LIABLE TO DISPOSED OFF ON MERIT. ACCORDINGLY THE APPEAL OF THE ASSESSEE BE TREATED AS ADMITTED BEFORE LD.CIT(A) AN D THE LD.CIT(A) DECIDE THE APPEAL OF THE ASSESSEE ON MERIT AFTER AFFORDING REASONABLE OP PORTUNITIES ON BEING HEARD. THE ORDER OF LD.CIT(A), IS THEREFORE SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE FOR DECIDING THE SAME ON MERIT. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14. 10.2011. SD/- SD/- (N.L.KALRA) (R.K.GUPTA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14/10/2011. *BASANT* COPY FORWARDED TO :- 1. M/S.THE SOLUTIONS, JAIPUR. 2. THE INCOME TAX OFFICER, WARD-6(1), JAIPUR. 3. THE CIT, 4. THE CIT(A) 5. THE D.R.,ITAT, JAIPUR. 6. THE GUARD FILE IN ITA NO.673/JP/11 BY OR DER A.R.,ITAT., JAIPUR