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TMI Blog2018 (10) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... ision for adjudication of appeal on merits without compliance thereof is totally impermissible. Thus, the jurisdiction could not be conferred on the CIT(A) to adjudicate the appeal on merits even if acquiescenced or estoppel or the bar of res judicata being attracted because the order in such case would lack inherent jurisdiction unless the conditions precedent are fulfilled. The order passed in the first instance in contravention of Section 249(4)(a) of the Act is thus a void order and hence a nullity in the eyes of law. CIT(A) itself, in a similarly placed situation, has taken a favourable view in the penalty proceedings before it. Therefore we are of the view that the appellate order passed by the CIT(A) pursuant to appeal filed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain, pointed out that the CIT(A) has dismissed the appeal of the assessee as non maintainable on the grounds of lack of jurisdiction. The learned AR adverted to the peculiar facts of the case to submit that the assessee filed return of income on 30.11.2003 declaring total income of ₹ 17,56,577/-. However, the return was filed without payment of taxes due as determined on the income returned by the assessee. The return was subjected to scrutiny assessment and certain additions/disallowances made by the AO. The assessee preferred appeal against the aforesaid order of the AO passed under s.143(3) of the Act dated 16.11.2007 before the CIT(A). The CIT(A) however dismissed the appeal of the assessee on the ground on non-compliance of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of disposal of appeal earlier; whereas in the similar circumstances and for the same cause of action, the CIT(A) agreed with the plea of the assessee that appeal filed before the CIT(A) earlier could not lie before the CIT(A) in the absence of payment of admitted tax as per returned income in view of the mandatory provisions of Section 249(4)(a) of the Act and proceeded to adjudicate the applicability of penalty under s.271(1)(c) of the Act on merits on the appeal filed again. The learned AR accordingly urged for setting aside the quantum appeal in ITA No.858/Ahd/2015 to the file of the CIT(A) for adjudication of its appeal on merits. In the same vain, the learned AR submitted that ITA No.859/Ahd/2015 concerns penalty emanating from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) in penalty appeal is reproduced hereunder for ready reference: "5. I have considered the facts of the case as well as the order of the AO and the submission of the AR of the appellant. The facts involved in the case of appellant are that in its case assessment order u/s 143(3) r.w.s. 144of the Act dated 25/01/2006 was passed by the AO for the year under consideration by disallowing the loss on sale of shares of ₹ 29,31,329/-. While completing the assessment u/s 143(3), the AO also initiated penalty proceeding u/s 271(1)(c) of the IT. Act. Subsequent to passing of order u/s 143(3)/ the AO passed penalty order u/s 271(1)(c) levying the penalty of ₹ 10,78,000/- for the year under consideration. The appellant had filed appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Hon'ble ITAT, Mumbai in the case of Sai Krupa Construction Company, 13 SOT 459 has held that if an appeal has been filed after making payment of unpaid taxes, it cannot be said that the requirement of section 249(4) has not been complied with and the only requirement of section 249(4) is payment of tax due on returned income. Following this decision of Hon'ble ITAT, Ahmedabad in the case of ITO vs. Ankush Fin Stock Ltd., the appeal of the appellant is admitted and accordingly the appeal of the appellant is decided on merits." 6. A bare reading of Section 249(4)(a) of the Act gives an infallible impression that the appeal before the CIT(A) would lie for adjudication on merits only on satisfaction of the mandatory condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal before us, is set aside and restored and all the issues in relation to the appeal connected are remanded back to the file of the CIT(A) for its consideration afresh and adjudication in accordance with law. 7. In the result, appeal of the assessee in ITA No.858/Ahd/2015 is allowed for statistical purposes. 8. As the quantum appeal in ITA No.858/Ahd/2015 is being restored back to the file of the CIT(A) for adjudication, the appellate order passed in the consequential penalty proceedings dated 20.01.2015 which is the subject matter of the appeal in ITA No.859/Ahd/2015 also requires to be restored as a logical corollary thereof. Consequently, order of the CIT(A) appealed against in ITA No.859/Ahd/2015 is also set aside and rest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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