9911796707
TMI Blog2012 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,835 85,764,477 679,166,463 1,036,474,852 1,700,730,245 983,740,689 3,720,945,786 Less : Adjustments collected by way of attachment 230,000,000 3,490,945,786 2. During the course of hearing, the learned AR submitted that the Assessing Officer passed orders under section 201(1) and 201(1A) of the Act, 1961 (hereinafter referred to as the "Act" in short), but sufficient and adequate opportunity as required under the law has not been provided by the Assessing Officer before treating the assessee in default under section 201(1) thereby the principle of justice has been violated. It was further submitted that the orders passed by the Assessing Officer are silent, non speaking and no reasons or cause has been shown as to how the Assessing Officer had determined the default in terms of section 201(1) and the levy of interest under section 201(1A) of the Act. It was contended that the Assessing Officer ought to have appreciated that the assessee company was having acute financial difficulties and in many cases, the recipient of the income had already fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the due date for filing the returns is June, 2012, however, the Assessing Officer held the assessee as "assessee in default" under section 201(1) of the Act without considering this vital fact that the time was available with the assessee for making the adjustments, as provided in section 192(3) of the Act. The learned counsel for the assessee stated that the orders passed by the Assessing Officer as well as by the learned CIT(A) without giving proper and due opportunity of being heard deserved to be quashed. It was further stated that all the bank accounts of the assessee have been attached and the business of the assessee came to a halt due to non operation of its bank accounts. The learned AR submitted that the assessee has a prima facie arguable case and even the balance of convenience is in favour of the assessee, therefore, the total outstanding demand may be stayed. Reliance was placed on the following case laws : Intel Tech India (P.) Ltd. ( supra ); Children Education Society v. Dy. CIT (TDS) [2009] 319 ITR 409/[2010] 8 taxmann.com 213 (Kar.); Mittal Steel Ltd. v. Asstt. CIT [1999] 240 ITR 707 (Kar.); Kantilal Manilal ( supra ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, 2012 can be made up to 31st May, 2012, therefore, the learned CIT(A) was not justified in confirming the arbitrary order passed by the Assessing Officer for holding that the assessee is "assessee in default" for the assessment year 2012-13. It was also submitted that the assessee, due to financial crunch, is not in a position to furnish the bank guarantee. 5. We have considered the submissions of both the parties and perused the materials available on record. As regard to the submission of the Learned CIT, DR that no appeal can be admitted in the Tribunal before making the payment of admitted tax, it is noticed that this issue has been settled by the Hon'ble Supreme Court in the case of Pawan Kumar Laddha ( supra ) wherein the provisions of section 249(4) of the Act has been considered and it has been held that "a provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his filing of the appeal under section 253(1)(b) of the Act is a disenabling provision. Such a disenabling provision must be clearly spelt out by the Legislature while enacting the statute and that has been done only in the case of an appeal under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the scheme of Chapter XX as stated above, no appeal under section 249(4)(a) in Chapter XX-A was admissible without the assessee having paid the admitted tax due on the income returned by him. It appears that once section 249(4)(a) is treated as a mandatory condition for filing an appeal before the Commissioner of Income Tax (Appeals) and once that condition stood satisfied at the time of his filing an appeal to the Commissioner of Income Tax (Appeals), then, there was no necessity for the assessee to once again pay the admitted tax due as a condition precedent to his filing the appeal before the Appellate Tribunal under section 253(1)(b) of the 1961 Act. Lastly, one must keep in mind the principle that the doctrine of incorporation cannot be invoked by implication. A provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his filing of appeal under section 253(1)(b) of the 1961 Act is a disenabling provision. Such a disenabling provision must be clearly spelt out by the Legislature while enacting the statute. The courts have to be careful in reading into the Act such disenabling provisions as that would tantamount to j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the Chairman and Managing Director of the assessee company to the Chairman of CBDT dated 9th March, 2012 was furnished before this Bench by the learned CIT, DR wherein it was proposed that the assessee is ready to pay the outstanding demand in 8 equal monthly instalments of Rs.44.60 crores. However, nothing was brought on record that the said proposal has been accepted by the department. In the present case, the business activities of the assessee are disturbed due to the attachment of the bank accounts, the demand of the department may be met out by the assessee when it is allowed to run the business smoothly and earn something from that business, by putting the business of the assessee at halt through attachment is not a solution. We, therefore, by considering the totality of the facts relevant to the present case, proposed to the learned counsel for the assessee to make a payment of Rs.44 crores out of the outstanding demand on or before 27.3.2012 and the remaining amount in the weekly instalments of Rs.9 crores each starting from 7/4/2012 till the demand is exhausted or till the disposal of the appeals, whichever is earlier. The assessee shall also furnish the bank guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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