SHRI CHHAGANLAL K. PATEL, Nagpur V. ACIT, CENTRAL CIRCLE 1(3), Nagpur

ITSSA 27/NAG/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0739 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 27-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT , JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER IT (SS) A NO. 27 / NAG ./ 2012 ( ASSESSMENT YEAR : 20 0 8 - 09 ) SHRI CHHAGANLAL K. PATEL 802, KAMAL PLACE NEAR KALPANA BUILDING RAMDASPETH, NAGPUR 400 010 APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1(3) AAYAKAR BHAVAN, NAGPUR .... RESPONDENT PERMANENT ACCOUNT NUMBER ACRPP0924H ASSESSEE BY : SHRI ABHAY AGRAWAL REVENUE BY : SHRI NARENDRA KANE / DATE OF HEARING 0 8 .04.2015 / DATE OF ORDER 10.04.2015 O R D E R PER MUKUL K. SHRAWAT, J.M. T HIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM THE ORDER DATED 27 TH SEPTEMBER 2012 , PASSED BY THE LEARNED COMMIS SIONER (APPEALS) - I, NAGPUR, FOR THE ASSESSMENT YEAR 20 08 - 09 . THE ONLY GROUND RAISED BY THE ASSESSEE BEFORE US IS THAT DUE TO NON - PAYMENT OF THAKURDAS SUKHDEO MALANI 2 ADMITTED TAX LIABILITY AS PER THE RETURN OF INCOME, THE LEARNED COMMISSIONER (APPEALS) HAS DISMISSED THE APPEAL AS U NDER: - 4. THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT UNEQUIVOCALLY STATES THAT WHEN A RETURN HAS BEEN FILED BY THE ASSESSEE THE TAX DUE ON THE RETURNED INCOME ARE TO BE PAID BEFORE THE FILING OF THE APPEAL. THERE ARE NO EXCEPTIONS PROVIDED IN THE SE CTION 249 OF THE ACT UNDER WHICH THIS CONDITIONS CAN BE WAIVED. I AM THEREFORE OF THE OPINION THAT THE APPEAL IS NOT MAINTAINABLE AND NEED NOT BE ADMITTED AS PER THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT. THE REQUIREMENT THAT ARE TAXES ON ADMITTED INC OME TO BE PAID BEFORE THE FILING OF APPEAL BECAUSE THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT ARE MANDATORY IN NATURE IS AFFIRMED IN THE FOLLOWING DECISIONS OF VARIOUS HIGH COURTS. ALARGAR SWAMY V/S ITO (MAD.) 296 ITR 43 D. KOMAL LAXMI V/S DCIT, 292 ITR 99 (KAR.) SUSHIL THOMAS IBRAHIM V/S ACIT, 304 ITR 346 (KER.) 5. SINCE THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT ARE MANDATORY, THE NON PAYMENT OF TAXES ON ADMITTED INCOME WOULD RESULT IN THE APPEAL BEING TREATED AS NOT MAINTAINABLE. I, THEREFOR E, HOLD THAT THE APPEAL CANNOT BE ADMITTED. THE APPEAL IS, THEREFORE, DISPOSED OF ACCORDINGLY AND TREATED AS DISMISSED FOR STATISTICAL PURPOSE. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI ABHAY AGRAWAL, HAS INFORMED THAT THE PRESENT POSITIO N IS THAT THE ASSESSEE HAS DEPOSITED A SUM OF ` 15,30,102, FOR THE ASSESSMENT YEAR 2008 - 09 VIDE CHALLAN DATED 14 TH JANUARY 2015. HE HAS ALSO INFORMED THAT IN ONE OF THE GROUP CASES, ON IDENTICAL FACTS, THE NAGPUR BENCH OF THE TRIBUNAL IN GIGEO CONSTRUCTION CO. PVT. LTD. V/S ACIT, ITA NO.397, 398 & 399/ NAG./2012, VIDE ORDER DATED 5 TH SEPTEMBER 2014, HAS HELD AS UNDER: - 8. BEFORE US, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT CIT(A) DID NOT ADJUDICATE THE ISSUES ON MERITS BUT ONLY DISMISSED THE APPEALS BY GIVING REASON THAT THAT THE SAME ARE NOT THAKURDAS SUKHDEO MALANI 3 MAINTAINABLE AS THE ASSESSEE DID NOT MAKE PAYMENT OF TAX ON ADMITTED INCOME AS PER THE RETURN WHICH IS REQUIRED AS PER THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT. HE FURTHER DEMONSTRATED THAT CONSIDERING THE FIN ANCIAL POSITION, THE ASSESSEE COULD PAY ONLY THE SELF - ASSESSMENT TAX REQUIRED U/S 140A OF THE ACT AND FILED THE COPIES OF THE TAX PAID CHALLANS. FURTHER, HE MENTIONED THAT THERE WAS NO MAONEY TO MAKE PAYMENT OF TAX AS PER THE RETURN. LD COUNSEL MADE A PRAY ED THE BENCH FOR ADMITTING THE APPEALS CONSIDERING THE PAYMENT BY THE ASSESSEE AND REMANDING THE APPEALS TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADMIT AND ADJUDICATE THE APPEALS ON MERITS. IN SUPPORT OF HIS CONTENTION, LD COUNSEL RELIED ON THE ORDER OF THE ITAT IN THE CAS OF VIJAY DANGRE V/S ACIT CC - 1(1), NAGPUR VIDE ITA NO.6 & 7/NAG./2011, DATED 19.10.2012 AND THE DECISION OF THE ITAT, HYDERABAD BENCH INT EH CASE OF SMT BANU BEGUM V/S DCIT VIDE ITA NO.2075/HYD./2011. 9. ON THE OTHER HAND, LD DR RELI ED ON THE ORDERS OF THE REVENUE AUTHORITIES DUTIFULLY. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. CONSIDERING THE FINANCIAL POSITION OF THE ASSESSEE AND IN THE AB SENCE OF FUNDS BEING NOT AVAILABLE WITH THE ASSESSEE, IT COULD NOT MAKE THE PAYMENT OF THE TAX ON RETURNED INCOME. AS PER THE CHALLANS, IT HAS PAID THE REQUIRED TAX AS PER THE RETURNS. CONSIDERING THE SAME AND THE DECISIONS OF THE TRIBUNAL IN THE CASES OF VIJAY DANGRE (SUPRA) AND SMT. BANU BEGUM (SUPRA), WE ARE OF THE OPINION THAT THE PRAYER OF THE LD COUNSEL FOR REMANDING THE APPEALS TO THE FILE OF THE CIT(A) WITH A DIRECTION TO READJUDICATE THE APPEALS ON MERITS AFTER AFFORDING AN REASONABLE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 3. SINCE THE VIEW HAS ALREADY BEEN TAKE BY THE CO - ORDINATE BENCH OF THE TRIBUNAL CITED SUPRA, THEREFORE, WE HEREBY SET ASIDE THE ORDER OF THE LE ARNED COMMISSIONER (APPEALS) AND RESTORE THIS APPEAL BACK TO HIM WITH A DIRECTION TO ADMIT THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09 AND ADJUDICATE THE GROUNDS ON MERIT. NEEDLESS TO SAY THAT THE LEARNED COMMISSIONER (APPEALS) SHALL PROVIDE REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THAKURDAS SUKHDEO MALANI 4 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED BUT FOR STATISTICAL PURPOSE ONLY. ORDER PRONOUNCED IN THE OPEN COURT O N 1 0 TH APRIL 2015. SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER NAGPUR , DATED : 10 TH APRIL 2015 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE ; (2) THE REVENUE; (3) THE CIT(A ) ; (4) THE CIT, NAGPUR CITY CONCERNED ; (5) THE DR, ITAT , NAGPUR ; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SS ISTANT REGISTRAR ITAT, NAGPUR