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TMI Blog2012 (4) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to entertain the appeal - If the statute gives a right to appeal upon certain conditions, it it upon fulfilment of those conditions that the right becomes vested in, and exercisable by, the appellant - . As is clear from Clause (b) of Sub-Section (4) of Section 249 of the Act in all cases falling under Sub-Section (4) of Section 249, no discretion is vested with the Appellate Authority - once the conduct of the assessee is not such as to disentitle him to exercise his right of appeal by obeying the law, that is by depositing the admitted tax liability, the Appellate Authority should be liberal in entertaining these applications and hear the appeal on merits and pass appropriate orders, in accordance with law - Appeal is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation Officer valued the developmental expenses to the tune of Rs. 9,30,000/- for both the assessment years. Based on the Valuation Report, the Assessing Authority allowed a sum of Rs. 4,27,800/- on proportionate basis as developmental expenses and proceeded to make an addition of Rs. 6,42,58,200/-. The assessee objected to the said assessment. However, his objections were over-ruled and the assessment was completed under Section 143(3) of the Act, by an order dated 31.3.2009, determining the total taxable income at Rs. 9,02,68,100/-. Aggrieved by the assessment order, the assessee preferred an appeal to the First Appellate Authority. Before the First Appellate Authority, the assessee admitted the income of Rs. 2,49,57,100/- as per the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the matter should be remitted back to the Appellate Authority, who shall verify whether the entire admitted tax has been paid and if so, he shall decide the case on merits. Aggrieved by the said order, the Revenue is in appeal. 3. The learned counsel for the Revenue contended that once the admitted tax liability is not paid, the appeal preferred is not maintainable and the Appellate Authority has no jurisdiction to entertain the appeal. Therefore, the order passed by the First Appellate Authority dismissing the appeal in limine is legal and valid. If the admitted tax is paid subsequent to the said order, that is not a ground for setting aside the order by the First Appellate Authority. Therefore, he submits that the entire approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome returned by the assessee cannot be found fault with. However, if after such dismissal, if the assessee pays the admitted tax and requests the Appellate Authority to recall the order dismissing the appeal in limine and to consider the appeal on merits under the aforesaid provision or under any other provision of the Act, there is no prohibition or legal impediment for the Appellate Authority to recall its earlier order and entertain the appeal and decide the same on merits. 5. The Apex Court in the case of Vijay Prakash D. Meht a v. Collector of Customs [1989] 175 ITR 540 (SC) dealing with the similar provisions under the Customs Act has held that the right of appeal is neither an absolute right nor an ingredient of natural ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory right of appeal. As is clear from Clause ( b ) of Sub-Section (4) of Section 249 of the Act in all cases falling under Sub-Section (4) of Section 249, no discretion is vested with the Appellate Authority. Therefore, in cases falling under clause (a) of Sub-Section (4) of Section 249 of the Act, if the said condition is not fulfilled by the assessee, the appeal shall not be admitted and the only order that can be passes is dismissal of the appeal in limine . Keeping in mind, the object with which these provisions are introduced, once the assessee realises his obligations under the Statute, the purpose with which these provisions in terrorem are introduced under the Act, obeys the statutory obligations, pays the tax, then he may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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