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TMI Blog2014 (2) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of Assessee. - I.T.A .No.-2082/Del/2012 - - - Dated:- 3-1-2014 - Smt. Diva Singh And Shri T. S. Kapoor,JJ. For the Appellant : Sh. Manohar Lal, Adv. Sh. Manish Kr. CA For the Respondent : Dr. Sudha Kumar, CIT DR ORDER Per Diva Singh, JM This is an appeal filed by the assessee against the order dated 14.03.2012 of CIT(A)-XXXI, New Delhi pertaining to 2009-10 assessment year on the following grounds:- "1. Whether on the facts and circumstances of the case, the Ld. CIT(A) is correct in dismissing the appeal quoting the provisions of section 249(4) of the Act, whereas, the taxes required to be deposited at the time of filing of the return were paid before hearing of the appeal? 2. Whether the taxes required to be paid and those have been paid before hearing of the appeal still deprives the assessee of natural justice and right of appeal at a very primitive stage? 3. The appellant craves leave for addition, modification, alteration, amendment of any of the grounds of appeal." 2. The hearing in the present case took place on different dates as initially time was sought by the Ld. CIT DR to go through the order relied upon by the assessee in its favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 25.01.2011 the assessee had deposited Rs.92,06,279/- on different dates from 30.04.2011 to 29.07.2011 as per page 7 of the impugned order explaining the facts that on account of the genuine financial hardship, the tax could not be deposited in time. It was submitted that infact there was a refund also due to the assessee. Accordingly it was his submission that by the time the CIT(A) decided the appeal tax due was fully paid and the dates on which the same was paid is evident from the order itself and only on the mere technicality that it was not paid at the time of filing the appeal it has been dismissed in limine ignoring the fact that at the time of adjudication the tax due stood fully paid. 4. Ld. CIT DR places reliance upon the impugned order however the statement that on the date of passing of the order no amount of tax due remained outstanding was not rebutted by her. It is seen that the Commissioner taking note of the fact that the tax paid on the returned income fell short by Rs.74,56,781/- on the date of filing of the appeal dismissed the appeal in limine. Reliance was placed upon the judgements of the Madras High Court and Karnatka High Court in the case of the S.Alag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. (3) Whether sufficient reason exists for curing this defect after expiry of limitation provided in section 249(2) of the Act. 10. It is undisputed proposition of law that appeal is a continuation of the original proceedings and right of appeal is not an inherent right but it is a statutory right. It is open to the Legislature to give or not to give a right appeal against decisions made by authorities. The right of appeal wherever conferred by statute has to be exercised strictly in conformity with the statutory provisions, which create it. If the statute put any restriction then, such right would be available along with such restrictions. It is also not disputed before us that assessee had made the payment of agreed tax during the pendency of these appeals. Before embarking upon the jurisdiction of the Tribunal whether these appeals can be restored back to the CIT(A) or not. It is salutary to take note of sub-sections (3) and (4) of section 249 and sub-section (1) of section 254 because these provisions have direct bearing on the controversy: Section 249(3) : " The CIT(A) may admit an appeal after the expiration of the said period if he is satisfied that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64 and 1964-65 respectively as against the amount of Rs. 65,700 and Rs 93,564. The assessee challenged this levy of penalty before the CIT(A) the learned CIT(A) quashed the penalty on the ground that the Assessing Officer levied the penalty contrary to the provisions of section 271 (1). The matter further traveled to the Tribunal. The tribunal has also dismissed the appeal of the Department by confirming the order of the CIT(A) on the ground that tribunal has no power to enhance the penalty. In such a situation, it can do nothing except affirming the order of the CIT(A) ultimately. the matter went up before the Hon'ble supreme Court. The Hon'ble Supreme court has observed as under while elaborating the scope of expression "pass such orders thereon as it thinks fit". "The expression 'as it thinks fit' is wide enough to including the power of remand to the authority competent to make the requisite order in accordance with law in such a case even though the Tribunal itself could not have made the order enhancing the amount of penalty. The power of the AAC under section 251 (1)(b) includes the power even if the enhance the penalty subject to the requirement of sub-section (2) of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of man Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. Its is the substance of justice which has to determine its form. The expression 'natural justice and legal justice' do no present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technically, grammatical pedantry or logical prevarication. Its supplies the omissions of a formulated law. The adherence to principal of natural justice as recognized by all civilized states is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties .... "(p. 271) 15. From the judgment of Hon'ble Delhi High Court, it is clear that whenever legal justice fails to achieve the solemn purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breaching any provisions of a statute. The Hon'ble Supreme Court in Collector Land Acquisition v. mst. Katiji [1987] 167 ITR 471 has observed that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. This, considering the hardship of the assessee, we are of the opinion that there exist sufficient reasons for not filing a valid effective appeal before the CIT(A). It is aptly said that facts should be viewed in natural perspective having regard to the compulsion of circumstances of a case where it is possible to draw inferences from the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee it would be Just and equitable to draw such inference in such a manner that would lead to equity and Justice. Too hypertechnical or legalized approach should be avoided in looking at a provision which must be equitably interpreted and justly administered. Hence, taking into consideration the overall facts and circumstances of the case we are of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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