2023 (6) TMI 85 - AT - Income Tax

Maintainability of appeal before the ld. CIT(A) - Violation of section 249(4) - non-payment of admitted tax - HELD THAT - The appeal before the ld. CIT(A) is caused the violation of section 249(4) and the appeal order U/s 250 is caused nullity which will be not maintainable before the bench. Tribunal is without jurisdiction if the first appeal is not maintainable on account of non-payment of admitted tax. In terms of section 249(4)( a ), appeal against such order of the CIT(A) is not maintainable before the Tribunal. The orders against which appeals are maintainable before the Tribunal U/s 253 include an order passed under section 250 of the Act which is an order in appeal passed by the CIT(A) on merits after entertaining the appeal. However, no appeal is provided against order of the CIT(A) declining to entertain appeal as defective or one not maintainable on account of non-payment of tax during filing of return - Assessee had never explained this issue or not made any objections related to this ground of revenue in the written submission. Issue related claim of section 32(1)(iia) for additional depreciation is entirely factual issue. But the appeal order itself caused not maintainable for violation of section 249(4) for non-payment of the admitted tax. So, the other grounds are kept open before the ld. CIT(A) - We remit back the matter to the ld. CIT(A) for adjudication the issue in relation to contravening of section 249(4) of the Act. Appeal allowed for statistical purposes.

Summary

Issues Involved:
The judgment involves issues related to the validity of the return filed by the assessee, the claim of additional depreciation, the jurisdiction of the Tribunal based on non-payment of admitted tax, and the maintainability of the appeal before the Tribunal.

Validity of Return:
The revenue contended that the return filed by the assessee in response to notice u/s 139(9) was invalid as it was filed after the time limitation for filing a revised return had expired. The CIT(A) was criticized for allowing the appeal without the assessee paying the tax due on the income returned, as required by Section 249(4) of the Act.

Claim of Additional Depreciation:
The assessee filed a rectification petition u/s 154 claiming additional depreciation u/s 32(1) of the Act, which was disallowed by the AO. The CIT(A) allowed the depreciation after verification from the AO. The revenue argued that the claim was improper and not verified, making the assessee ineligible for additional depreciation.

Jurisdiction of the Tribunal:
The revenue contended that the appeal order was null and void due to non-payment of admitted tax, contravening Section 249(4) of the Act. The Tribunal held that an appeal without payment of due tax causes a violation of Section 249(4) and renders the appeal not maintainable. The matter was remitted back to the CIT(A) for adjudication on the issue of non-payment of admitted tax.

Maintainability of Appeal:
The Tribunal found that the appeal was not maintainable due to the non-payment of admitted tax, as required by Section 249(4) of the Act. The appeal order was deemed null and void, and the matter was remitted back to the CIT(A) for further consideration. The appeals of the revenue were allowed for statistical purposes.