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TMI Blog2005 (3) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... r the proviso to section 30 of the Indian Income-tax Act, 1922 in the instant case, when there is a material difference between the relevant provisions in section 30 of the 1922 Act and section 249(4) of the Income-tax Act, 1961? 4. Whether Tribunal is correct in not remanding the case to the CIT (A) to deal with the appeal before him in accordance with law? 5. Whether ITAT was justified in observing that 'Even otherwise, there is no substance in the contention of the assessee that the assessment should have been cancelled by the CIT (A), when it held that the appeal before the CIT (A)was incompetent?" - Wwe answer questions Nos. 1, 2 and 3 in favour of the Commissioner of Income-tax and against the assessee and answer questions Nos. 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act, 1961? 4. Whether in the facts and circumstances of the case, the Income-tax Appellate Tribunal is correct in not remanding the case to the Commissioner of Income-tax (Appeals) to deal with the appeal before him in accordance with law? 5. Whether the Income-tax Appellate Tribunal (ITAT) was justified in observing that 'Even otherwise, there is no substance in the contention of the assessee that the assessment should have been cancelled by the Commissioner of Income-tax (Appeals)', when it held that the appeal before the Commissioner of Income-tax (Appeals) was incompetent?" Heard Shri G.M. Chafekar, learned senior counsel with Shri D.S. Kale, learned counsel for the applicant and Shri R.L. Jain, learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 249(4) of the Act and hence, the Commissioner of Income-tax (Appeals) was in error in admitting the appeal and in consequence allowing the appeal. In other words, the Tribunal held that since the assessee failed to pay the tax as contemplated under section 249(4) and hence, the Commissioner of Income-tax (Appeals) had no jurisdiction to entertain the appeal filed by the assessee. It was on this ground, the Tribunal allowed the appeal filed by the Revenue and dismissed the appeal filed by the assessee before the Commissioner of Income-tax (Appeals). As a consequence, the order of the Commissioner of Income-tax (Appeals) which has resulted in setting aside of the assessment order and remand for making fresh assessment was set aside, resulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of an appeal is not covered under clauses (i), (ii) and (iii), two hundred fifty rupees:- (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 the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause." The proviso to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements contained in section 249(4) ibid. If the appellant fails to deposit the tax strictly in accordance with the requirement of clause (a) or (b), as the case may be, the appeal has to be dismissed as not maintainable. If the appellant makes an application as contemplated under the proviso to sub-section (4) then it is the duty of Commissioner of Income-tax (Appeals) to pass appropriate orders on the application so made by either granting an exemption from payment of tax or refusing the prayer. Depending upon the outcome of the application, the Commissioner of Income-tax (Appeals) has to proceed. In other words, if the application is rejected then the appellant has to deposit the tax strictly in accordance with the requirement of clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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