2021 (7) TMI 172 - HC - Income Tax

Rejection application for Revision u/s 264 in favor of assessee - Rejection on the ground the assessee has filing an appeal u/s 246 which was rejected by the CIT(A) due to non-payment of tax - Whether the rejection of the appeal by the 2nd respondent as void ab initio for having been filed without complying with mandatory provisions of Section 249(4)(a) can be considered as a matter having been subject of an appeal , to oust or prevent the 1st respondent from exercising the power of Revision conferred on him under Section 264 of the Act? - HELD THAT - Admittedly, in the facts of the present case, the appeal filed by the petitioner against the order of the 3rd respondent dt.31.03.2003, had been filed without payment of admitted tax due as per the return of income. Since, the admitted tax due is required to be paid for filing the appeal before the 2nd respondent for it to be entertained, and the appeal having been filed by the petitioner without making such payment, the said appeal, even if filed, cannot be considered as a validly presented appeal. It is for the said reason, the 2nd respondent, without adjudicating the matter on merits, has rejected the appeal as void ab initio, though by using the term as dismissed . Any appeal, which is not accompanied either by the requisite Court fee, or any other mandatory payment required to be made as per the provisions of the relevant Statute, cannot be considered as a validly presented appeal, and such appeal would be non-est in the eye of law. Once an appeal is considered as non-est in the eye of law, any order impugned in such appeal cannot be considered as subject of an appeal , as there is no ascertainment or adjudication of the issues raised in the appeal on its merits. As noted that Section 251(1)(a) of the Act stipulates that an appeal filed before the appellate authority to be considered as disposed, would require such order under challenge to be either confirmed, reduced, enhanced or annulled. It goes without saying that the disposal is by considering the merits of the matter. In the facts of the present case, the order passed by the 2nd respondent, in rejecting the appeal as void ab initio, cannot be considered as disposing the appeal by any of the above modes specified. Thus, it cannot be said that the order of assessment of the 3rd respondent is subject of an appeal placing embargo/ousting the jurisdiction of the 1st respondent under Section 264(4). Having regard to the position of law elucidated above, this Court is of the considered view that the impugned order passed by the 1st respondent under Section 246(6) of the Act, refusing to exercise Revisional power conferred on him under Section 264(4) of the Act, on the ground that the order of the 3rd respondent dt.31.03.2003 was subject of an appeal (underlining supplied by the Court) before the 2nd respondent, cannot be sustained. Writ Petition is allowed; the impugned order passed by the 1st respondent, is set aside; the matter is remitted back to the 1st respondent (or the concerned Commissioner, in view of passage of time and change of jurisdiction); the 1st respondent (or the concerned Commissioner) is directed to dispose of the Revision petition filed by the petitioner within a period of three (3) months from the date of receipt of a copy of this order, by passing a reasoned order in accordance with law, after affording personal hearing to the petitioner and communicate the same to the petitioner.

Summary

Issues:
Challenge to the correctness of proceeding under Section 264(6) of the Income-tax Act, 1961 for the Assessment Year 1997-98.

Analysis:
The petitioner contested the Order of Assessment passed by the 3rd respondent and subsequent dismissal of appeal by the 2nd respondent. The petitioner then sought Revision under Section 264 of the Act, focusing on the issue of proceeds from the sale of agricultural land being subjected to Long Term Capital Gains. The 1st respondent rejected the Revision application citing provisions of Section 264(4) of the Act, which precludes revision in case of an order subject to appeal. The petitioner argued against this rejection, emphasizing that the appeal dismissed by the 2nd respondent was void ab initio due to non-payment of admitted tax, hence not a valid appeal under Section 251 of the Act.

The Court deliberated on whether the rejection of the appeal by the 2nd respondent as void ab initio could prevent the 1st respondent from exercising Revision power under Section 264. It was established that an appeal filed without complying with mandatory provisions is not validly presented and is considered non-est in the eye of the law. The Court referenced precedents from Madras and Kerala High Courts to support the interpretation that an order must be the subject of an "effective" appeal to preclude revision. The Circular No.367 issued by the CBDT was also considered, emphasizing the binding nature of CBDT circulars on the Revenue.

In light of the legal principles and precedents, the Court concluded that the impugned order by the 1st respondent, refusing to exercise Revisional power, cannot be sustained. The Writ Petition was allowed, setting aside the 1st respondent's order and remitting the matter back for reconsideration. The 1st respondent was directed to dispose of the Revision petition within three months, following due process and legal requirements. Pending miscellaneous petitions were closed, and no costs were awarded in the final order.