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TMI Blog2013 (12) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted taxes can be restored to the CIT(A) only by the Hon'ble Tribunal and that the CIT(A) has no power to recall own order dismissing the appeal on such grounds even after the tax is paid and the defect resulting into rejection of appeal being cured by filing another appeal. The Ld. CIT(A)-IV, Ahmedabad ought to have held that the powers of CIT(A) in this regard are not to deprive the appellant of his right to appeal but to serve the object of right to appeal to an assessee and, therefore, the Ld. CIT(A)-IV, Ahmedabad be directed to hold that on satisfaction of conditions prescribed in sec. 249(4)(a), the appeal filed on 03.02.2005 was to be admitted for adjudication. 2. That Ld. CIT(A)-IV, Ahmedabad has erred in law and in facts in taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has not paid tax due on the income returned by him. The assessee had filed her return of income at Rs.31,11,813/- and was assessed at Rs.71,35,129/- against which the appeal was filed before learned CIT(Appeals) on 3rd February, 2005. Learned CIT(Appeals) has issued various notices by Speed Post which are listed at page 2 of the impugned order. Learned CIT(Appeals) observed from the appeal memo along with which a letter dated 31st January, 2005 was filed in which the assessee had requested CIT(Appeals) to restore the appeal which was earlier rejected by order dated 13th February, 2004 for non-payment of the agreed tax u/s 130A of the Act. Learned CIT(Appeals) in the impugned order has observed that at the time of disposal of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice, should have admitted the appeal to decide the same on merits. He also relied upon the decision of Tribunal in the case of Bhumiraj Construction vs. Addl.CIT 131 ITD 406 wherein also similar proposition has been laid down and it was held that if the appeal is filed without payment of tax on returned income but subsequently the required amount of tax is paid, the appeal shall be admitted on payment of tax and taken up for hearing. In the said case, it was found that assessee had paid the tax due on the income returned albeit after the disposal of the appeal by CIT(Appeals). On such payment, the defect in the appeal due to non-compliance of directory requirement of paying such tax before filing of the appeal, stood removed. Ex.consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2004, assessee has made the payment of tax on returned income which is amounted to Rs.6,78,456/- on 30th June, 2004, copy for such receipt has already been filed. The assessee requested the learned CIT(Appeals) for recalling of the order as the defect of non-payment of tax on returned income was removed. However, learned CIT(Appeals) after distinguishing aforementioned decision of Ahmedabad ITAT has again dismissed the appeal filed by the assessee on ground of application of section 249(4). In the second decision which is rendered by coordinate benche of Mumbai ITAT, a proposition has been laid down that CIT(Appeals) should revive the appeal earlier dismissed on account of application of section 249(4), if assessee has removed the defect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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