2002 (8) TMI 36 - HC - Income Tax

Appeal To AAC - Failure To File Return In Time - Whether, on the facts and in the circumstances of the case, the Appellate Tribunal s view that the provision of section 249(4) as amended would not apply to the assessee s case is sustainable in law? - we find that the Tribunal has disposed of the appeals only on the preliminary ground that the relevant assessment years were 1973-74 and 1974-75 and, therefore, it was only the old law which was applicable. On that ground the Tribunal stayed the order of the appellate authority solely taking into consideration the nonpayment of the admitted tax liability and that order was set aside, restoring the earlier order. In our opinion, the Tribunal will have to consider the matter on the merits because the appellate order also shows that the appellate authority has considered the matters on the merits

Issues Involved:
1. Applicability of Section 249(4) of the Income-tax Act, 1961, as amended, to the assessee's case.
2. Retrospective application of procedural amendments.
3. Distinction between appeals against assessments and appeals against penalties.
4. Commencement of 'lis' and its relevance to the applicability of amended laws.
5. Tribunal's interpretation of the assessment years and its effect on the right of appeal.

Detailed Analysis:

1. Applicability of Section 249(4) of the Income-tax Act, 1961, as amended, to the assessee's case:
The primary issue was whether the amended Section 249(4), effective from October 1, 1975, applied to the assessee's appeals for the assessment years 1973-74 and 1974-75. The Tribunal had ruled that the amended section could not apply retrospectively to these appeals. However, the court noted that the returns were filed on March 12, 1976, after the amendment came into effect, making the amended section applicable to the appeals.

2. Retrospective application of procedural amendments:
The court discussed whether the amendment to Section 249(4) was procedural and thus could be applied retrospectively. It was argued that the amendment was procedural and should apply to pending cases. However, the court, referencing the Supreme Court's judgment in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, held that the amendment affected the substantive right of appeal and could not be applied retrospectively unless explicitly stated.

3. Distinction between appeals against assessments and appeals against penalties:
The amicus curiae argued that appeals against penalties should be treated separately from appeals against assessments and should not be dismissed for non-payment of admitted taxes. The court rejected this argument, stating that the opening words of Section 249(4) were clear and covered all types of appeals under Chapter XX, including those against penalties.

4. Commencement of 'lis' and its relevance to the applicability of amended laws:
The court emphasized that the commencement of 'lis' (dispute) was crucial in determining the applicability of the amended law. The 'lis' in this case commenced when the returns were filed on March 12, 1976, after the amendment took effect. The court held that the relevant date for applying the amended law was the date of filing the returns or the date of assessment, not the assessment year.

5. Tribunal's interpretation of the assessment years and its effect on the right of appeal:
The Tribunal had erroneously based its decision on the assessment years, concluding that the old law applied because the assessment years were 1973-74 and 1974-75. The court clarified that the assessment years were irrelevant and that the commencement of the 'lis' was the determining factor. The Tribunal's decision was thus flawed as it failed to consider the correct commencement date of the 'lis'.

Conclusion:
The court concluded that the amended Section 249(4) applied to the assessee's appeals since the 'lis' commenced after the amendment came into effect. The Tribunal's decision was set aside, and the matter was remanded for a decision on the merits. The court also acknowledged the assistance of the amicus curiae in the case.

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