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TMI Blog1998 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing the appellant had made the payment of the entire tax and accordingly appeal could not have been disposed of by rejecting the same on the ground that assessee had not. paid the admitted tax. 3. That in the alternative and without prejudice to the above since the appellant was unable to make the payment of admitted tax due at the time of the presentation of the appeal the delay in making the tax deserved to be condoned looking to the fact that the demand raised amounted to Rs. 6,26,038. 4. That in any case on the facts and circumstances of the case, the learned CWT(A) ought to have admitted the appeal and disposed of the same on merits. 5. That upon the correct interpretation of section 23(2A) read with proviso to the section the ld. CWT(A) in the circumstances of the case, ought to have disposed of the appeal, after having found that the appellant had paid the admitted tax when the appeal was heard to be disposed of on mertis." 3. Facts in brief which are relevant for the issue in hand are like this that the assessee filed his returns of wealth-tax on 27-6-1985 and 1-7-1985 and assessment in these cases were completed on 25-3-1988 and 16-3-1989 for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the appeal as envisaged in section 23(2A) of the W.T. Act. Therefore appeals of the assessee were not admitted/entertained and dismissed on the ground that assessee has not paid admitted wealth-tax before filing of appeals. Aggrieved by these orders of learned CWT(A), assessee has filed the present appeals and is before us. 5. All the pleas as taken before the first appellate authority were reiterated here and further submitted that since assessee's company in which he is Managing Director and drawing salary which is his only source was passing through great financial crisis and assessee was also in great financial difficulty, the admitted tax on the basis of returned wealth could not be paid before filing of the appeals but that stood paid suo Moto by the assessee before the effective hearing in this case could take place as first notice of hearing and explanation about admitted tax payment was issued on 30-3-1990 in both these cases and in view of decided cases of Hon'ble Supreme Court and various High Courts appeals of the assessee cannot be held to be incompetent as merely because tax was not paid within the time limit prescribed for filing of the appeal and in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was duly quoted before the CWT(A) who did not even consider the same when it is law pronounced by the highest court of land and the learned CWT(A) should have considered it and admitted the appeals. Assessee also relied upon the decision of Hon'ble Madras High Court reported in 10 TTJ (Mds) 254. Reliance was also placed on Addl CIT v. Free Wheels India Ltd. [1982]137 ITR 378/9 Taxman 18 (Delhi), CWT v. S.L. Hendra [1991] 191 ITR 565 (Bom.), CIT v. Chembara Peak Estates Ltd. [1990] 183 ITR 471/47 Taxman 166 (Ker.), Vijay Prakash D. Mehta v, Collector of Customs [1989] 175 ITR 540/41 Taxman 147 (SC), ClT v. Bengal Card Board Industries Printers (P) Ltd. [1989] 176 ITR 193/49 Taxman 60 (Cal.) and CIT v. Kalipada Ghose[1987] 167 ITR 173/29 Taxman 197 (Ori.). It was pleaded for acceptance of appeals. 6. The learned DR, on the other hand, submitted that since mandatory requirement of law has not been fulfilled, the learned CWT(A) was fully justified in not admitting the appeal. 7. We have heard the rival submissions, perused the record and gone through the orders of the learned CWT(A) and case laws as cited. From the facts as appearing from the record, we find that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above reasoning or the conclusion of the Allahabad High Court on the point under consideration. It is true that an appeal filed under-section 9 of the Act cannot be entertained by the appellate authority unless satisfactory proof is adduced of the payment of tax admitted by the appellant to be due but in a case where the amount of admitted tax is deposited after the period of limitation has expired all that will happen is that the appeal will become entertainable only on the day on which satisfactory proof of payment of that amount is produced. In other words the appeal will be deemed to have been properly filed on the date on which the amount of admitted tax is paid. If that is beyond the period of 30 days the appeal will be barred by time. Section 9(6) will immediately become applicable to that appeal and it will be open to the appellant to apply for condonation of delay under that provision. We are wholly unable to follow the argument that the deposit of the amount of admitted tax must be made within 30 days even though the delay in filing the appeal can be condoned under sub-section (6). A proper and correct reading of section 9 cannot justify such an approach. If a petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned the delay or not but to say that the appellate authority had no jurisdiction to extend the time simply because the amount of admitted tax had been deposited beyond the period of 30 days would be wholly erroneous and would not represent a true and correct view of the provisions of section 9. It may be pointed out that the case of Lakshmiratan Engineering Works on which the High Court largely relied did not involve the question of the extension of the period of limitation under section 9(6). Indeed in our judgment the word "entertain" in section 9(1) has hardly any material bearing on the point under consideration.' 8. In another case of Sadhna Enterprise v. CSTMP 54 STC 172 it was held, - non-payment of tax assessed at the time of filing of appeal but depositing the tax before appeal taken up for hearing on notice to show cause for dismissal of appeal for non-payment of tax - Summarily dismissal of appeal for non-deposit of tax - not justified - following Babulal Mohanlal Kandel v. CST [1981] 47 STC 60 (MP) and in this case SLP was also dismissed by SC [1987] 64 STC FRSL 9, Sl. No. 27. 9. Now question arises whether delay could be condoned and our attention is attracted tow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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