2010 (10) TMI 752 - AT - Income Tax

Payment of tax before filing of an appeal - The assessee has not paid the admitted tax liability of Rs. 6,99,760 on the income return by it at the time of filing the appeal before the CIT(A) - Since the admitted tax was not paid on or before filing the appeal i.e., 19-1-2010, the assessee s appeal was not admitted by the CIT(A) and the same was dismissed - held that - When there is an excess payment of tax by assessee and assessee is entitled for a refund and the balance is pending with the department to refund to the assessee and further there was attachment bank account of the assessee, to make further payment if required towards admitted tax liability, the right guaranteed to the assessee to prefer an appeal cannot be deprived by taking the view that the assessee failed to pay the tax due on income shown in the return of income filed by assessee on 19-2-2008. Under these circumstances, the CIT(A) required to consider the refund due to the assessee and amount attached by the department at Rs. 30,34,965 on 19-11-2009 and payment made by the assessee at Rs. 7.50 lakhs on 8-6-2010 to be adjusted towards admitted tax liability for the assessment year 2007-08. Being so, in all fairness, the assessee cannot be penalized by not admitting its appeal for adjudication by the CIT(A).

Issues Involved:
1. Non-admission of appeal by CIT(A) due to non-payment of admitted tax liability.
2. Consideration of tax credits and payments made by the assessee.
3. Attachment of bank accounts and its impact on tax payments.
4. Delay in payment of taxes and its condonation.
5. Assessment order under section 144 and its validity.
6. Disallowance of depreciation and other additions.
7. Interpretation and application of section 249(4) of the Income-tax Act, 1961.

Detailed Analysis:

1. Non-admission of Appeal by CIT(A) Due to Non-payment of Admitted Tax Liability:
The assessee's appeal was dismissed by the CIT(A) on the grounds that the admitted tax liability was not paid at the time of filing the appeal, as required under section 249(4) of the Income-tax Act, 1961. The CIT(A) emphasized that the appeal could not be admitted without the payment of the admitted tax liability.

2. Consideration of Tax Credits and Payments Made by the Assessee:
The assessee argued that the CIT(A) did not consider tax credits of Rs. 6,69,193 and Rs. 10,568 for the assessment year 2005-06, which remained unadjusted. Additionally, the assessee highlighted payments of Rs. 2,01,745 on 31-3-2010 and Rs. 7.50 lakhs on 8-6-2010, asserting that these payments should be considered towards the admitted tax liability.

3. Attachment of Bank Accounts and Its Impact on Tax Payments:
The assessee's bank accounts were attached under section 226(3) of the Act, which hindered its ability to make timely tax payments. The attachment of Rs. 30,34,965 on 19-11-2009 was cited as a significant factor contributing to the delay in payment.

4. Delay in Payment of Taxes and Its Condonation:
The assessee requested the CIT(A) to condone the delay in tax payment due to the attachment of bank accounts and adverse market conditions. The assessee argued that the CIT(A) failed to consider these mitigating factors and the sincerity shown in resolving the tax liabilities.

5. Assessment Order Under Section 144 and Its Validity:
The assessee contended that the assessment order under section 144 was void ab initio due to the lack of reasonable opportunity provided to the assessee. The assessee cited various case laws to support the argument that the conditions precedent for making a best judgment assessment were not fulfilled.

6. Disallowance of Depreciation and Other Additions:
The assessee challenged the disallowance of depreciation on computers and other additions made by the Assessing Officer, arguing that these disallowances were unjustified.

7. Interpretation and Application of Section 249(4) of the Income-tax Act, 1961:
The departmental representative argued that the provisions of section 249(4)(a) are mandatory and that the CIT(A) has no discretion to condone the delay in payment of admitted tax. The representative emphasized that the amendment to section 249(4) aimed to encourage tax compliance and that the appeal could not be admitted without the payment of the admitted tax liability.

Conclusion:
The Tribunal concluded that the CIT(A) should have considered the tax credits, payments made, and the attachment of bank accounts before dismissing the appeal. The Tribunal set aside the CIT(A)'s order and directed the CIT(A) to admit the appeal and decide the issues on merit within three months. The stay petition filed by the assessee was dismissed as infructuous. The appeal of the assessee was partly allowed, and the assessment order was set aside for fresh consideration.

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