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TMI Blog2021 (8) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the provisions of section 249(4)(b) and to be heard on merits. As the assessee has deposited an amount of ₹ 13 lacs equal to advance tax as per section 249(4)(b) for the impugned assessment year, the additional evidence by way of tax challans towards payment of taxes are hereby admitted and consequent thereto, the appeal by the assessee against the order of assessment need to be admitted and adjudicated by the CIT(Appeals) on merits. Payment of tax is mandatory but the requirement of paying such tax before filing appeal is only directory and where the defect in the appeal, being the non-payment of such tax, is removed, the earlier defective appeal becomes valid, applies equally to clause (b) sub-section (4) of section 249 - where the admitted taxes are paid at a later point of time, then the appeal of the assessee should be considered as properly instituted and should be heard and decided by the CIT(Appeals) on merits. Considering the same, the matter is set- aside to the file of the ld. CIT(A) with the directions to verify and consider the payment of taxes towards due discharge of the assessee s liability as per provisions of section 249(4)(b) of the Act and decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de order dated 28.03.2019 dismissed the appeal of the assessee as un admitted. 6. The order of the ld. CIT(A) was communicated vide E-Mail on 28.03.2019 which came in the knowledge of the assessee either on the same day or later day. 7. The A/R of the assessee advised that remedy of the revival of the appeal before ld. CIT(A) or preferring appeal before Hon. ITAT against the order of ld. CIT(A) may be taken only after deposit of Tax equal to Advance Tax as provided u/s 249(4)(b) of IT Act 1961. 8. The assessee was subject to continuous down fall in business and wife of the Director of the assessee company was suffering from serious disease cancer, therefore under such adverse business and personal circumstances could not deposited any amount of Tax till 25.02.2020. 9. The assessee after it's best efforts could deposited ₹ 5,00,000/-on 25.02.2020 and discussed the case with his A/R. 10. The A/R of the assessee advised that taking in to account the Tax already deposited in different installments before disposal of the appeal by ld. CIT(A) along with Tax deposited on 25.02.2020 is sufficient for compliance of section 249(4)(b) of IT Act, 1961. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case the AO is not justified in Estimating the Net Income from Interest and commission of ₹ 3,17,048/-. 2.3 Under the facts and circumstances of the case the AO is not justified in Estimating the Net Income from Rent of ₹ 2,21,800/-. 7. In Ground No. 1, the assessee has challenged the action of the ld. CIT(A) in dismissing the appeal due to non deposit of admitted tax/advance tax as provided u/s 249(4) of the Act, 1961. 8. In this regard, the ld DR drawn our reference to the findings of the ld. CIT(A) which read as under:- I have carefully considered the material before me. I find that the appellant is not paid the tax on admitted income till date, which is mandatory as per section 249(4) of the IT Act. The section say that 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. In the appellant case the appellant not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable explanation for non-payment of taxes. Therefore, before the appeal is admitted for adjudication, the ld CIT(A) has to examine whether the assessee has either complied with the requirement of payment of taxes, or has moved an application seeking an exemption from such requirement and on disposal of such application seeking exemption from payment of taxes, the appeal may be admitted for adjudication. 12. In the instant case, on perusal of the order of the ld CIT(A), we find that the ld CIT(A) has not admitted the appeal for want of payment of taxes equal to advance tax by the assessee. Apparently, there is nothing on record which suggests that the assessee has moved any application before the ld CIT(A) seeking exemption from payment of taxes. However, before us, the assessee has moved an application seeking admission of additional evidence by way of tax challans disclosing payment of ₹ 13 lacs equal to advance tax as per section 249(4)(b) for the impugned assessment year. 13. It is noted that taxes amounting to ₹ 6 lacs have been deposited by the assessee before filing of appeal before the ld CIT(A), the taxes amounting to ₹ 2 lacs have been deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thakore v. Asstt. CIT [2006] 5 SOT 298 in which it has been held that the CIT(A) was not justified in dismissing the appeal under section 249(4)(a) where the assessee's application for downward rectification of self-assessment tax was still pending. Per contra the learned Departmental Representative relied on another order passed by the Mumbai Bench of the Tribunal in the case of Bharatkumar Sekhsaria v. Dy. CIT [2002] 82 ITD 512 in which the action of the CIT(A) in not admitting the appeal was held to be justified. He further relied on the judgment of the Karnataka High Court in the case of D. Komalakshi v. Dy. CIT [2007] 162 Taxman 16. 12. Adverting to the facts of the instant case we find that the assessee paid the tax due on income returned albeit after the disposal of appeal by the ld. CIT(A). On such payment, the defect in the appeal due to non-compliance of a directory requirement of paying such tax before the filing of the appeal, stood removed. Ex consequenti this appeal should have been revived by the ld. first appellate authority. Under such circumstances we set aside the impugned order and restore the matter to the file of the learned CIT(A) for disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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