2012 (7) TMI 148 - AT - Income Tax

Delay of filing of appeal by 412 days - petition seeking condonation of delay accompanied by a sworn affidavit - Held that - As it is no doubt true that non-payment of admitted tax on the returned income is fatal to the validity of an appeal, in terms of the provisions of S.249(4)(a)as it is a curable defect, and till such time admitted tax is paid the appeal remains defective and not valid, and when such defect is cured by payment of tax on the returned income by the assessee, the appeal becomes valid, and such valid appeal is deemed to have been filed - as the assessee has admittedly paid the taxes on the returned income, only on 8.12.2011, before filing the present appeal before the Tribunal and the reason for the delayed payment of admitted tax on returned income is stated to be the absence of proper advice by the Chartered Accountant of the assessee is acceptable. On conjoint reading of Sub-sections (3) & (4) of S.249, it is inferred that defect arises due to non-compliance of Section 249(4) is a curable one and in a given case if the Tribunal is satisfied that there exist sufficient reasons for curing such defects after expiry of limitation, it would be in the realm of Tribunal s discretion to restore such matters to the file of the CIT(A) for deciding the controversy on merit because Section 254(1) provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice.As the assessee has discharged the huge tax liability and as a proof the assessee filed a copy of challan it would be totally unfair for not providing an opportunity to her for disputing the additions made by the AO on merit - in favour of assessee.

Issues Involved:
1. Delay in filing the appeal.
2. Non-payment of admitted tax on returned income.
3. Validity and maintainability of the appeal under Section 249(4) of the Income Tax Act.
4. Powers of the Tribunal under Section 254(1) of the Income Tax Act.
5. Principles of natural justice and legal justice.

Detailed Analysis:

1. Delay in Filing the Appeal:
The appeal was filed with a delay of 412 days. The assessee, an elderly woman dependent on her Chartered Accountant, was unaware of the dismissal of her appeal by the CIT(A) due to non-payment of admitted tax. The delay was attributed to the Chartered Accountant's failure to inform and guide her. The Tribunal noted that courts and quasi-judicial bodies have the power to condone delays if sufficient reasons are provided. The Tribunal emphasized that "sufficient cause" should receive a liberal construction to advance substantial justice, citing the Supreme Court's observation in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471. The Tribunal found the reasons for the delay bona fide and condoned the delay, allowing the appeal to be heard on merits.

2. Non-payment of Admitted Tax on Returned Income:
The CIT(A) dismissed the appeal in limine due to non-payment of admitted tax on the returned income, as required under Section 249(4)(a) of the Income Tax Act. The Tribunal acknowledged that non-payment of admitted tax renders an appeal defective but noted that this defect is curable. Once the admitted tax is paid, the appeal becomes valid. The Tribunal referenced ITA No.402/Hyd/2011, where it was held that delay in filing the appeal should be reckoned until the defect is cured. In this case, the assessee paid the taxes on 8.12.2011 before filing the present appeal, and the delay was attributed to the absence of proper advice from the Chartered Accountant.

3. Validity and Maintainability of the Appeal under Section 249(4):
The Tribunal discussed the statutory provisions under Section 249(3) and (4), highlighting that the right to appeal is statutory and must be exercised in conformity with the provisions. The Tribunal noted that if sufficient reasons for non-compliance are provided, the defect can be cured, and the appeal can be admitted. The Tribunal emphasized that the defect due to non-compliance of Section 249(4) is curable, and if the Tribunal is satisfied with the reasons for curing the defect after the expiry of the limitation, it can restore the matter to the CIT(A) for adjudication on merits.

4. Powers of the Tribunal under Section 254(1):
The Tribunal referred to the Supreme Court's judgments in Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 and CIT v. Assam Travels Shipping Service [1993] 199 ITR 1, which elaborated on the Tribunal's powers under Section 254(1). The Tribunal has the authority to direct further inquiry and dispose of the case on the basis of such inquiry. The Tribunal can also remand the case to the CIT(A) for adjudication on merits if sufficient reasons for delay are provided.

5. Principles of Natural Justice and Legal Justice:
The Tribunal emphasized the importance of natural justice, citing the Delhi High Court's judgment in J.T. (India) Exports v. Union of India [2003] 262 ITR 269. The Tribunal noted that natural justice should aid legal justice, especially when legal justice fails to achieve the purpose of securing justice. The Tribunal observed that the assessee had made substantial payments towards the tax liability, indicating a lack of sufficient funds at the relevant time. The Tribunal concluded that it would be unfair to deny the assessee an opportunity to dispute the additions made by the AO on merits.

Conclusion:
The Tribunal set aside the impugned order of the CIT(A) and restored the matter to the CIT(A) for adjudication on merits. The CIT(A) was directed to provide a reasonable opportunity of hearing to the assessee and decide the appeal afresh in accordance with the law. The appeal was allowed in favor of the assessee.

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