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TMI Blog2014 (11) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted unless at the time of filing of the appeal, where a return has been filed by the assessee, tax due on the income returned has been paid - In this sub-section, there is a clause (b) which is in respect of a condition where no return at all has been filed by the assessee - A Proviso underneath the section also prescribes that the cases falling under the said clause (b), the CIT(A) can grant exemption from the operation of the clause - An inference can be drawn on combined reading of both the sub-clauses of sub-section (4) of section 249 that in case of default of non-payment of tax an appeal is not to be admitted, but on removal of the defect of non-payment of tax an appeal deserves to be admitted and in one of the condition the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head Income from business/profession . The assessee, however, had not paid the self-assessment tax. Aggrieved by the above assessment and the change of head of computation, the assessee filed the appeal before the CIT(A). 3. The CIT(A) observed that the assessee had not paid the self assessment tax even till the date of filing of appeal before him or by the date he finalised the assessee's appeal. He observed that in terms of provisions of section 249(4), the appeal filed is inadmissible. The CIT(A) quoted Section 249(4)(a) which reads as under: Section 249: (1) ... (2) ... (3) ... (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in upholding the order of the Assessing Officer in holding that the transfer of capital asset, being agricultural land to a subsidiary company which was exempt u/s 47(iv) of the IT Act, 1961 was not a capital asset and, therefore, erred in holding that the gain arising there from was assessable under the head Income from Business . 6. The learned counsel for the assessee filed a Paper Book and relied on the following decisions: (a) M/s. Nagavalli Green Lands Pvt. Ltd. Others, ITA Nos. 521 to 532/Hyd/2012 order dated 8.6.2012. (b) Shri T. Kishan vs. ACIT, ITA(SS)A Nos. 23 25/Hyd/2011 order dated 18.5.2012. (c) DCIT vs. D. Komalakshi, Karnataka High Court order dated 11.8.2006. (d) CIT vs. Manoj Kumar Beriwal (217 CTR 407) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether non-availability of funds for making payment of agreed taxes with the assessee could be considered as a reasonable cause for filing defective appeals in violation of Section 249(4) of the Act. (3) Whether sufficient reason exists for curing this defect after expiry of limitation provided in Section 249(2) of the Act. 20. 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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. In the above case the Tribunal restored the matter to the file of the CIT(A). 10. This Tribunal in the case of Nagavalli Green Lands Pvt. Ltd. vs. DCIT in ITA No. 521/Hyd/2012 in its consolidated order dated 08/06/2012. The relevant portion is extracted below: 5. As seen from the above table, the admitted taxes payable by the assessee have been paid on the respective dates mentioned at the column 'date of payment of admitted tax' and the same has been confirmed by the learned counsel for the assessee at the time of hearing before us. We are, therefore, of the opinion that it is fair to admit all these appeals now as the assessee discharged their duties in paying the admitted taxes. In this connection, we refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied about the liquidity crunch or any other reasonable cause for non payment of taxes. Section 249(3) prescribes the CIT(A) may admit the appeal after the expiration of the said period if he is satisfied that the assessee had sufficient cause for non-presenting the appeal within the prescribed period. While sub section (3) of section 249 pertains to those assessees who have filed return and paid the tax but belatedly filed an appeal. On the other hand, sub-section (4) of section 249 pertains to those assessees who have defaulted in payment of tax or did not file the return. 13. Hence as per section 249(4) of the Act no appeal before CIT(A) should be admitted unless at the time of filing of the appeal, where a return has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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