2008 (7) TMI 252 - HC - Income Tax

Appealable orders CIT (A) dismissed appeal on ground of non-payment of tax - maintainability of appeal to tribunal - whether Tribunal was justified in entertaining appeal u/s 253 against Ext.P4 order of the C.I.T.(Appeals) held that no appeal is provided against order of the Commissioner (Appeals) declining to entertain appeal as defective or one not maintainable on account of non-payment of tax

Summary

Issues:
1. Challenge against Ext.P1 intimation under Section 143(1)(a) of the Income Tax Act.
2. Maintainability of Ext.P5 order of the Tribunal interfering with Ext.P4 order of the C.I.T.(Appeals).

Issue 1: Challenge against Ext.P1 Intimation under Section 143(1)(a):
The petitioner, an assessee under the Income Tax Act, filed a return for the assessment year 1996-97 but did not remit the admitted tax before filing the return as required under Section 140A of the Act. The Assessing Officer noticed errors in the tax calculation and sent an intimation under Section 143(1a) demanding payment. The petitioner's argument that Ext.P1 merges with the subsequent assessment under Section 143(3) was deemed legally incorrect. The court held that Ext.P1 and Ext.P2 (regular assessment) are distinct proceedings. The petitioner failed to challenge Ext.P1 or rectify any alleged mistakes, indicating no adverse findings. The court found the challenge against Ext.P1 not maintainable.

Issue 2: Maintainability of Ext.P5 Order of the Tribunal:
The Tribunal's Ext.P5 order remanding the case back to the Assessing Officer was challenged for interfering with the C.I.T.(Appeals) order rejecting the appeal due to non-payment of admitted tax under Section 249(4)(a) of the Act. The court analyzed Section 249(4) which mandates payment of tax due on the income returned for appeal admissibility. It clarified that an appeal can only be entertained if the tax due is paid at the time of filing the appeal. The court emphasized that the appellate authority lacks jurisdiction to entertain appeals without the tax payment. The Tribunal's decision to entertain the appeal against Ext.P4 order was deemed beyond its jurisdiction. The court vacated the Ext.P5 order under Article 227 of the Constitution of India but granted the petitioner an opportunity to pay the admitted tax within six weeks for the appeal to be entertained on merits.

This judgment highlights the importance of complying with tax payment requirements for appeal admissibility and distinguishes between different stages of the assessment process under the Income Tax Act.