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TMI Blog2023 (5) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... Member For the Assessee : Shri Pankaj Shah Shri Soumya Bumb ARs For the Revenue : Shri P.K. Mishra CIT DR ORDER PER VIJAY PAL RAO, JM : These two appeals by the assessee are directed against the two separate orders of Ld. Commissioner of Income Tax (Appeals) (in short Ld. CIT(A)-3, dated 27.02.2023 28.02.2023 for Assessment Years 2011-12 2009-10 respectively. The assessee has raised common grounds in these appeals, the grounds raised for the A.Y. 2009-10 are reproduced as under: Ground 1: Against non-admissibility of appeal On the facts and circumstances of the case and in law the learned Commissioner of Income tax (Appeals)-3, Bhopal ( CIT(A) ) erred in not admitting the appeal without appreciating that the requirement of Section 249(4)(a) of the Act was fulfilled. The Appellant prays that the order of learned CIT(A) dismissing the appeal in limine be set aside with directions to decide the appeal on merits. Ground 2: Against non appreciation of judicial pronouncements On the facts and circumstances of the facts and in law the learned CIT(A) erred in not appreciating the decisions of various High Courts and Apex Court holding that if the admitted tax has been paid subsequently the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment tax fully however, during the pendency of the appeal before the Ld. CIT(A) the assessee paid full self-assessment tax as required u/s 249(4)(a) of the Act. The assessee has also explained the reasons for non-payment of the self-assessment tax as the assessee company was passing through serious financial crises and consequently, the assessee was not in a position to pay the self-assessment tax at once. The ld. CIT(A) has not disputed these facts of subsequent payment of self-assessment tax by the assessee but dismissed these appeals on the ground that at the time of filing these appeals as on 15.01.2022 the assessee has not paid the due tax payable on the return income. The provisions of section 249(4)(a) of the Act set out the condition that no appeal shall be admitted unless, at the time of filing the appeal, the assessee has paid the tax due on the income that return by him. Thus, it is clear that there is no limitation prescribed for payment of the tax but it is required to be paid at the time of filing the appeal and consequently the delay in payment of the due tax on the return income can be at the most considered as delay in filing the appeal. The Bangalore Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome returned by the assessee cannot be found fault with. However, if after such dismissal, if the assessee pays the admitted tax and requests the Appellate Authority to recall the order dismissing the appeal in limine and to consider the appeal on merits under the aforesaid provision or under any other provision of the Act, there is no prohibition or legal impediment for the Appellate Authority to recall its earlier order and entertain the appeal and decide the same on merits. 5. The Apex Court in the case of Vijay Prakash D. Mehta v. Collector of Customs [1989] 175 ITR 540(SC) dealing with the similar provisions under the Customs Act has held that the right of appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi-judicial adjudications. The right of appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself, following the rules of natural justice, would be violative of any right, constitutional or statutory without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it it upon ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the assessee is not such as to disentitle him to exercise his right of appeal by obeying the law, that is by depositing the admitted tax liability, the Appellate Authority should be liberal in entertaining these applications and hear the appeal on merits and pass appropriate orders, in accordance with law. In the light of what we have stated, the order passed by the Tribunal cannot he found fault with. Accordingly, the appeal is dismissed. Following the above judgment, we set aside the order of CIT (A) and remit the issue back for consideration in accordance with law. 6. Similarly, in case of Annapoorneshwari Investment vs. DCIT (supra) the Bangalore Bench of the Tribunal has again considered this issue in para 5 to 7 as under: 5. We have considered the rival submissions. The provisions of Sec. 249(4) of the Act reads as follows: Section 249(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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted. In other words if the appeal is to be admitted by the first appellate authority, it is sine qua non that the assessee must have made the payment of tax on the income returned. If no payment of tax on the income returned is made at all and the appeal is filed, that cannot be admitted. If however the appeal is filed without the payment of such tax but subsequently the required amount of tax is paid, the appeal shall be admitted on payment of tax and taken up for hearing. The tribunal examined the objective behind s. 249(4) and observed that the same is to ensure the payment of tax on income returned before the admission of appeal. If such payment after the filing of appeal but before it is taken up for disposal validates the defective appeal, then there is no reason as to why the doors of justice be closed on a poor assessee who could manage to make the payment of tax at a later date. The stipulation as to the payment of such tax ante the filing of first appeal is only directory and not mandatory. Whereas the payment of such tax is mandatory but the requirement of paying such tax before filing appeal is only directory. When the defect in the appeal, being the non-payment of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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