2012 (4) TMI 213 - HC - Income Tax

Validity and legality of appeal - Survey - During the survey, it was noticed that the assessee had debited a sum of Rs. 7,55,85,800/- for the assessment year 2006-07, and Rs. 6,46,86,000/- for the assessment year 2007-08 towards the earth filling charges in Kasavanahalli Project - Assessing Authority doubted the incurring of these expenses, the matter was referred to the District Valuation Officer to find out the actual costs of developmental expenses incurred - learned counsel for the Revenue contended that once the admitted tax liability is not paid, the appeal preferred is not maintainable and the Appellate Authority has no jurisdiction to entertain the appeal - If the statute gives a right to appeal upon certain conditions, it it upon fulfilment of those conditions that the right becomes vested in, and exercisable by, the appellant - . As is clear from Clause (b) of Sub-Section (4) of Section 249 of the Act in all cases falling under Sub-Section (4) of Section 249, no discretion is vested with the Appellate Authority - once the conduct of the assessee is not such as to disentitle him to exercise his right of appeal by obeying the law, that is by depositing the admitted tax liability, the Appellate Authority should be liberal in entertaining these applications and hear the appeal on merits and pass appropriate orders, in accordance with law - Appeal is dismissed

Summary

Issues:
1. Appeal against Tribunal's order allowing the assessee's appeal and setting aside the order of the Appellate Authority.
2. Dismissal of appeal in limine for non-payment of admitted tax by the assessee.
3. Interpretation of Section 249(4) of the Income-tax Act regarding the payment of admitted tax for entertaining an appeal.

Analysis:
1. The case involves an appeal by the Revenue against the Tribunal's decision to set aside the Appellate Authority's order rejecting the assessee's application to recall the dismissal of the appeal for non-payment of admitted tax. The assessee, a real estate developer, filed a return for the assessment year 2007-08, admitting an income of Rs. 2,49,87,100. The assessment raised a demand of Rs. 96,64,935, and after a survey, additional expenses were disputed, leading to a total taxable income determination of Rs. 9,02,68,100. The appeal was rejected in limine for non-payment of admitted tax, leading to subsequent appeals and the Tribunal's decision to remit the matter back to the Appellate Authority for verification of tax payment and a decision on merits.

2. The Revenue argued that the appeal should not be entertained if the admitted tax is not paid at the time of filing the appeal, as per Section 249 of the Income-tax Act. The Appellate Authority's dismissal of the appeal in limine was considered legal and valid, with no jurisdiction to entertain the appeal if the tax liability remains unpaid. However, the Tribunal's decision to remit the matter back for verification of tax payment and consideration on merits was challenged by the Revenue.

3. Section 249(4) of the Income-tax Act mandates the payment of admitted tax for entertaining an appeal. The provision dictates that unless the assessee pays the admitted tax due on the income returned, no appeal shall be entertained. The Act does not vest the Appellate Authority with the power to waive payment of admitted tax and entertain the appeal. However, if the tax is paid subsequently, the Appellate Authority can recall its earlier order and decide the appeal on merits. The Supreme Court's precedent clarifies that the right of appeal is a statutory right subject to conditions imposed by the statute, such as the payment of admitted tax. The purpose of such conditions is to ensure compliance with the law, and once the tax is paid, the right of appeal should not be denied. The Tribunal has the power to recall its order and hear the appeal on merits if the tax liability is fulfilled, as obedience to statutory obligations should enable the exercise of the right of appeal.

In conclusion, the Tribunal's decision to remit the matter back to the Appellate Authority for verification of tax payment and consideration on merits aligns with the statutory provisions and the Supreme Court's interpretation of the right of appeal subject to conditions like payment of admitted tax. The appeal by the Revenue is dismissed based on the legal principles discussed in the judgment.