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TMI Blog2003 (9) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) arrived at a conclusion that sufficient reasons exist then again the controversy would be decided on merit. Thus, on conjoint reading of sub-ss. (3) and (4), it is inferred that defect arises due to non-compliance of s. 249(4) is a curable one and in a given case if the Tribunal is satisfied that there exist sufficient reasons for curing such defects after expiry of limitation, it would be in the realm of Tribunal's discretion to restore such matters to the file of the CIT(A) for deciding the controversy on merit because sub-s. (1) of s. 254 provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice. Whether sufficient reasons exist for curing defect after expiry of limitation provided u/s 249(2) of the Act. Since, we have held in the upper part of the order that appeal filed in violation of s. 249(4) would be termed as a defective one and the moment defect is cured then those can be disposed of on merit subject to limitation. The Courts and the quasi-judicial bodies are empowered to condone the delay if a litigant satisfies the Court that there were sufficient reasons for availing the remedy after expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section Date of order Assessed income (Rs.) Demand raised (Rs.) Tax Interest Total 143(1)(a) 31-3-1995 17,45,940 9,41,438 9,71,858 18,54,896 154 9-8-1995 17,45,940 3,83,038 3,08,930 6,91,968 144 r/w s. 147 21-1-1997 25,16,390 8,13,456 10,85,478 18,98,934 Appeal is filed against the assessment order dt. 21st Jan., 1997 (before the Tribunal) Details of taxes paid : Rs. Advance tax paid as per return 83,808 Adjustment made on 14-3-1995 1,035 Self assessment tax paid under s. 140A on 30-3-1995 5,00,000 Regular tax paid to TRO 1. 28-2-1997 1,00,000 2. 29-3-1997 1,00,000 3. 30-5-1997 25,000 4. 31-7-1997 3,00,000 5. 27-8-1997 3,00,000 6. 3-10-1977 3,00,000 7. 29-10-1997 3,00,000 8. Sept., 1997 3,00,000 9. 2-12-1997 3,00,000 20,25,000 26,09,843 Appeal before the CIT(A) was filed on 26th Feb., 1997 Shri J.K. Chaturvedi Asst. yr. 1992-93 Return under s. 148 was filed on 29th March, 1995 Return was received on 9th Oct., 1995 Total income as per return ₹ 18,87,168 Tax payable as per return ₹ 10,03,517 Interest payable ₹ 5,25,079 Total tax interest payable ₹ 15,28,596 Order passed Under ss. Date of order Assessed income (Rs.) Demand raised (Rs.) Tax Interest Total 143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay agreed tax on the returned income. Since assessee failed to pay the taxes, therefore, his appeals could not be admitted and, thus, learned first appellate authority dismissed them in limine. 7. In support of the appeals, Shri M.K. Patel, learned counsel for the assessee took us through ss. 249, 250 and 254 of the IT Act and contended that although the appellant was required to discharge the liability of agreed tax prior to institution of appeals before the CIT(A), but even in not doing so, the appeal, at the most, could be termed as defective one. According to the learned counsel, there would be two courses available with the assessee that he ought to have waited for filing appeal before the CIT(A) upto and until agreed taxes are paid and then should have filed appeal along with application for condondation of delay or the assessee could adopt the course as one adopted by him presently. On the strength of phraseology, such orders thereon as it thinks fit used in s. 254(1), the learned counsel submitted that Tribunal has plenary powers to condone the delay and restore the appeal before the CIT(A) for deciding them on merit because by now assessee has paid all the agreed taxes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal is not an inherent right but it is a statutory right. It is open to the legislature to give or not to give a right of appeal against decisions made by authorities. The right of appeal wherever conferred by statute has to be exercised strictly in conformity with the statutory provisions, which create it. If the statute put any restriction then, such right would be available along with such restrictions. It is also not disputed before us that assessee had made the payment of agreed tax during the pendency of these appeals. Before embarking upon the jurisdiction of the Tribunal whether these appeals can be restored back to the CIT(A) or not, it is salutary to take note of sub-ss. (3) and (4) of s. 249 and sub-s. (1) of s. 254 because these provisions have direct bearing on the controversy : Sec. 249(3) : The CIT(A) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Sec. 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 inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the Department by confirming the order of the CIT(A) on the ground that Tribunal has no power to enhance the penalty. In such a situation, it can do nothing except affirming the order of the CIT(A). Ultimately, the matter went up before the Hon'ble Supreme Court. The Hon'ble Supreme Court has observed as under while elaborating the scope of expression pass such orders thereon as it thinks fit. : The expression as it thinks fit is wide enough to including the power of remand to the authority competent to make the requisite order in accordance with law in such a case even though the Tribunal itself could not have made the order enhancing the amount of penalty. The power of the AAC under s. 251(1)(b) includes the power even to enhance the penalty subject to the requirement of sub-s. (2) of s. 251 of a reasonable opportunity of showing cause against such enhancement being given to the appellant assessed. This could have been done in the assessee's appeal itself filed in the present case. The power of the Tribunal to make an order of remand in such a situation is well-settled in Hukumchand Mills Ltd. vs. CIT (1967) 63 ITR 232(SC). 13. On plain reading of sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice which has to determine its form. The expression, 'natural justice and legal justice' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technically, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. The adherence to principle of natural justice as recognized by all civilized states is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties. 15. From the judgment of Hon'ble Delhi High Court, it is clear that whenever legal justice fails to achieve the solemn purpose of securing justice then natural justice is called in aid of legal justice. From the details submitted by the assessee in the paper book as extracted by us, it reveals that assessee kept on making the payment of tax along with interest in instalments. Had the assessee was having sufficient fund with him, then no prudent businessman would allow to swell the liability of interest in such a way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid analysis, it has to be held that the order of the AAC dismissing the appeals for non-compliance with s. 249(4) of the Act came within the ambit of s. 250 of the Act and was appealable before the Tribunal under s. 253 of the Act. The Tribunal, therefore, committed no illegality in entertaining the appeals and in condoning the delay on being satisfied, on the facts and circumstances of the case, that there was sufficient cause for the assessee's failure to comply with s. 249(4) of the Act and in remitting the cases to the first appellate forum for disposal on merits. Accordingly, the question referred is answered in the affirmative. Thus, we are fortified for our view by the above decision of the Hon'ble High Court. 16. The next issue for our adjudication is whether sufficient reasons exist for curing defect after expiry of limitation provided under s. 249(2) of the Act. Since, we have held in the upper part of the order that appeal filed in violation of s. 249(4) would be termed as a defective one and the moment defect is cured then those can be disposed of on merit subject to limitation. The Courts and the quasi-judicial bodies are empowered to condone the delay if a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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