TaxTMI 
TaxTMI 
2010 (9) TMI 385
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...., the Hon'ble Tribunal was right in holding that Section 249(4) is to be so construed to mean that there is absolute bar to right of appeal in a case where the assessee has not paid the entire self assessment tax at the time of filing of the appeal, even if the said assessment tax is paid soon after filing the appeal and before the hearing of the appeal has taken place ?" 2 The facts giving rise to the filing of the above Appeal can be stated thus: The Department carried out search and seizure operation at the premises of the Appellant on 9121997. During the said search operation, apart from other things, the Department seized cash of Rs. 1,80,000/. Thereafter, a notice under Section 158BC of the Said Act was issued to the Appellant re....
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....able by the Appellant as per the return filed by him was Rs. 6,12,000/. The Appellant had already asked the Respondent to adjust the seized amount of Rs. 1,80,000/against the said tax and Rs. 27,830/ arising out of the refund of Assessment Year 19981999, was already adjusted by the Respondent against the said tax. It is the case of the Appellant that on 15.3.2000, he had asked his accountant to pay Rs. 4,00,000/ towards the balance tax payable. However, through inadvertence the Accountant, while filing the challan, by mistake wrote the Assessment Year 200001 against the column wherein the Assessment Year is to be mentioned, instead of writing block period 1-4-1987 to 8-12-1997. Oblivious of this mistake, the Appellant had filed an App....
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....ppeal after the expiration of period of filing of the Appeal, if the First Appellate Authority was satisfied that the Appellant had shown sufficient cause for not presenting the Appeal within time. Whereas according to the Tribunal, there was no such power vested with the First Appellate Authority under the Income Tax Act, 1961. 4 We have heard Shri J.D.Mistry, Senior Counsel for the Appellant and Mr. Suresh Kumar the Learned Counsel for the Respondent. The principal contention of the Learned Counsel for the Appellant was that since the Appellant had paid the tax payable on 3132000, it is the said date which has to be taken as a date of filing of the Appeal and if the said date is taken into consideration, then there is a delay of about 4 ....
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....el for the Appellant that there was no dispute that in so far as, the Appellant is concerned, the balance self assessment tax payable, was paid by him on 3132000. In the said factual back ground the proposition laid down by the Apex court in the Judgment in Filmstan Ltd. (Supra) would have to be considered. The relevant paragraph of the said Judgment, is reproduced herein under for convenience sake. "The Controversy between the parties revolves round the words "no appeal shall lie". The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and, therefore, if the tax has not been paid the memorandum of appeal cannot be fled and if filed it is merely a waste paper. In our opinion....
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.... Appeal can be presented and all that it mean is that the Appeal will not be held to be properly filed until the tax has been paid. Applying the said principles laid down by the Apex Court to the facts of the instant case, the Appeal as filed by the Appellant on 24.3.2000 can be said to be filed on 31.3.2000, when the payment of the balance self assessment tax was made by the Appellant. Though various Judgments were cited on behalf of the Appellant in support of his case for condonation of delay, the Tribunal has not even adverted to them and has held that the said Judgments are not applicable, as they were under Income Tax Act, 1922, wherein there was a specific provision for condonation of delay in Section 30 and since in the Income Tax A....