9911796707
TMI Blog2008 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner, an assessee under the Income Tax Act filed Ext.P3 return for the assessment year 1996-97. Even though petitioner declared a business profit of Rs.6,08,680/- and tax liability of Rs.1,57,969/-, the petitioner did not remit the admitted tax before filing of the income tax return as required under Section 140A of the Income Tax Act, 1961. On processing Ext.P3 return, the Assessing Officer noticed that the calculation of tax on the returned income is incorrect and petitioner was liable to pay interest under Sections 234A, 234B and 234C of the Act. He accordingly sent intimation under Section 143(1a) of the Act vide Ext.P1 demanding payment of Rs.2,81,473/-. After sending intimation vide Ext.P1 dated 24.3.1997, the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) is not maintainable before the Tribunal and appeal provided against C.I.T.(Appeals)'s order is only against order on merits passed under Section 250 of the Act. This court through an interim order dated 28.9.2004 directed the assessee to show cause why Tribunal's order vide Ext.P5 should not be vacated by this court in exercise of powers conferred under Article 227 of the Constitution of India. The petitioner has filed an affidavit supporting maintainability of the Tribunal's order. I have gone through the W.P., documents annexed thereto and the affidavit filed by the petitioner pursuant to interim order dated 28.9.2004 and heard Standing Counsel appearing for the respondents. 2. Challenge against Ext.P1 is not maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, even though challenge against regular assessment may lead to redressal of grievance against intimation issued under Section 143(1)(a) also. The petitioner has no case that the Assessing Officer has committed any mistake in Ext.P1 and if so, he would have filed at least an application for rectification of such mistake. The petitioner also did not file objection against Ext.P1 probably because there is nothing adverse against him in Ext.P1 as there is no adjustment towards disallowance besides demanding of tax and interest on the actual income returned by the petitioner. Section 143(1)(a) of the Act. 3. The next question to be considered is whether Ext.P5 order of the Tribunal interfering with Ext.P4 order of the C.I.T.(Appeals) re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be rejected in limine as one not maintainable. The Commissioner of Income Tax (Appeals) is authorised to dispose of the appeal on merits under Section 250 of the Act only if it is one found maintainable among other things, in regard to satisfaction of Section 249(4)(a) of the Act i.e. payment of tax on admitted income. In this case it is clear from Ext.P4 that appeal was not entertained and the same was dismissed by the Commissioner(Appeals) on the ground that it is not maintainable for non-payment of tax on income admitted in the return. 5. The next question to be considered is whether Tribunal was justified in entertaining appeal under Section 253 against Ext.P4 order of the C.I.T.(Appeals). The orders against which appeals are main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. I am unable to accept the contentions raised by the assessee in the affidavit filed in support of the Tribunal's order. I, therefore, hold that Ext.P5 order is beyond the jurisdiction of the Tribunal and the same is vacated in exercise of powers conferred on this court under Article 227 of the Constitution of India. However, I give opportunity to the petitioner to pay the admitted tax and interest thereon within six weeks from now and if payment is made, there will be direction to the C.I.T.(Appeals) to entertain the appeal and decide the case on merits. If assessee does not comply with the above direction, it will be open to the department to proceed for recovery treating Exts.P1 and P4 orders have become final. 6. The W.P. i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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