9911796707
TMI Blog2010 (9) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... l that it mean is that the Appeal will not be held to be properly filed until the tax has been paid. Applying the said principles laid down by the Apex Court to the facts of the instant case, the Appeal as filed by the Appellant on 24.3.2000 can be said to be filed on 31.3.2000, when the payment of the balance self assessment tax was made by the Appellant- The impugned order would have to be set aside and the question of law would have to be answered in favour of the Assessee and against the Revenue Tribunal has also erred in mixing up the issue of condonation of delay in filing the appeal, with the issue of condonation of delay in paying the tax. The said issues could not have been mixed up by the Tribunal in the teeth of Section 249(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, a notice under Section 158BC of the Said Act was issued to the Appellant requiring him to file block return. The return was filed on 27.11.1998, as per the return, the income disclosed by the Appellant was ₹ 10,00,000/- and the tax payable thereon came to ₹ 6,12,000/. It is the case of the Appellant that he could not make the payment of the self assessment tax on account of liquidity crunch. However, it is the case of the Appellant that he requested the Respondents to adjust the cash already seized against his cash liability. 3 The Department thereafter took up assessment of the block period sometime in August 1999 and the block assessment order under Section 158BC was passed on 2321000 assessing income at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned, instead of writing block period 1-4-1987 to 8-12-1997. Oblivious of this mistake, the Appellant had filed an Appeal before the First Appellate Authority i.e. the Commissioner of Income Tax Appeals on 24.3.2000. However, after filing the Appeal, the mistake was realised and the Appellant after arranging further funds had paid ₹ 5,00,000/towards the self assessment tax for the block period on 31.3.2000 i.e. within 5 days after filing of the Appeal. The Appellant , therefore, address a communication dated 2612001 to the CIT (Appeals), requesting him to condone the delay in filing the Appeal by treating the Appeal as filed on 31.3.2000 i.e. the date when the Appellant paid the balance tax payable. The CIT (Appeals) by order dated 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken as a date of filing of the Appeal and if the said date is taken into consideration, then there is a delay of about 4 days in filing the Appeal. The Learned Counsel submitted that the Tribunal has proceeded on erroneous premise that no power is vested with the Tribunal under Section 249 to condone the delay in filing the Appeal. The Learned Counsel drew our attention to sub Section (3) of Section 249 and contended that the First Appellate Authority has the power to condone the delay if sufficient reasons are made out for the same. The Learned counsel further submitted that since the Appellant had deposited the balance of the tax payable on 3132000, the Appeal can be said to be filed on the said date though it has been filed earlier o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the tax has not been paid the memorandum of appeal cannot be fled and if filed it is merely a waste paper. In our opinion the meaning of the words no appeal shall lie in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day i.e. 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1922, wherein there was a specific provision for condonation of delay in Section 30 and since in the Income Tax Act 1961, there is no analogus provision, the said Judgments would not be applicable. In our view, the Tribunal has proceeded on totally erroneous premise. The Tribunal, it seems, has glossed over Section 249(3) of the Income Tax Act, 1961, where there is a specific provision for condonation of delay which power is vested with the CIT (Appeals), if he satisfied that the Appellant had sufficient cause for not presenting the Appeal within time. Both, the CIT (Appeals) and the Tribunal have, therefore, erred in rejecting the applications of the Appellant as not maintainable in view of Section 249(4) of the said Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
