TaxTMI 
TaxTMI 
2010 (10) TMI 752
X X X X Extracts X X X X
X X X X Extracts X X X X
....6,99,760 on the income return by it at the time of filing the appeal before the CIT(A). The assessee has filed the appeal before the CIT(A) on 19-1-2010. The CIT(A) in his letter dated 26-5-2010 informed the assessee that it has not paid the admitted tax due on the return of income for the assessment year 2007-08 after referring the provisions of section 249(4) of the IT Act and it was asked the assessee why the appeal of the assessee should not be rejected without admitting the same. In response to the above letter of the CIT(A), the assessee filed a letter dated 9-6-2010 stating that the assessee has paid an amount of Rs. 2,01,745 on 31-3-2010 and further an amount of Rs. 7.50 lakhs on 8-6-2010 and informed the CIT(A) that the amount of admitted tax has already been paid. Since the admitted tax was not paid on or before filing the appeal i.e., 19-1-2010, the assessee's appeal was not admitted by the CIT(A) and the same was dismissed in limine. 4. The learned authorised representative for the assessee submitted that the CIT(A) erred while passing the order and misunderstood the total factual position on record of the assessee and finally came to the conclusion that the admitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. He submitted that the CIT(A) has not considered the condoning the delay under section 249(3) of the IT Act, 1961 after submission of the facts that at the time of filing of the appeal the accounts of the assessee were under attachments and during that time onlyi.e., on 15-12-2009 after a month of the attachment of the Bank account the order under the provisions of section 144 has been received on 24-12-2009 and the appeal could be filed on 19-1-2010 which is the fact of the assessee's case which has not been considered by the CIT(A). (vi) That the assessee has sincerely made attempt to make the payment of admitted tax liability though the available tax credit available on record. This act of the assessee shows positive proof and sincerity in resolving the factual defects in the appeal. He submitted that in spite of there being unadjusted amount of tax credit and attachment of bank accounts, the assessee has paid admitted tax which was not considered by the CIT(A). He submitted that there was a payment of tax on 31-10-2005 at Rs. 6,99,760 on 31-3-2006 at Rs. 10,568 towards the admitted tax for the assessment year 2007-08. Further, there was an attachment from the departm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....65] 56 ITR 293 (Mad.) (f) State of Orissa v. Maharaja Shri B.P. Singh Deo [1970] 76 ITR 690 (SC) (g) CIT v. Ranicherra Tea Co. Ltd. [1994] 207 ITR 9792 (Cal.) (h) Brij Bhushan Lal Parduman Kumar v. CIT [1978] 115 ITR 524 (SC) (i) Badri Singh Thakur v. ITO [1995] 78 Taxman 206 (Jab.) (Mag.). (ix) That the same information was provided before the CIT(A) which has not been considered at all and passed the assessment order unilaterally even without considering/referring the information provided by the assessee by simply taking the wrong conclusion that the self-assessment tax has not been paid by the assessee. The original assessment order was passed under section 144 of the IT Act, 1961 dated 15-12-2009 wherein the relevant opportunity has not been given to the assessee company. Hence the assessment may be set aside for doing a fresh assessment giving a reasonable opportunity to the assessee. 7. He submitted that disallowance of depreciation on computers, addition on account of difference net profit, addition on account of fixed deposits is not justified. 8. The learned departmental representative submitted tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relied on the judgment of Punjab & Haryana High Court in the case of Shergarh Co.op. L & C Society Ltd. v. ITO [2010] 324 ITR 4083 wherein it was held that: Wherever the Legislature desired to provide for condonation of delay specific provision has been made in the Income-tax Act, 1961 and, therefore, if no such provision has been made, then no application under section 5 of the Limitation Act, 1963 could be filed as the Act itself is a complete code. Delay in filing of the appeal beyond the period of 120 days prescribed by section 260A(2)(a) Act could not be condoned by entertaining an application under section 5 of the Limitation Act, 1963. 9. The language of section 249(4) is very plain and without any ambiguity. There are also no inconsistencies found in the words and expressions used in the section. A statute is an edict of the Legislature and conventional way of interpreting or construing statute is to seek the intention of its maker. A statute is to be construed according to the intent of those that make it and the duty of adjudicator is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation, the Court has to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ars 2004-05 and 2005-06 respectively. This is on account of payment of tax on 31-10-2005 at Rs. 6,69,193 and Rs. 10,568 on 31-3-2006 which was unadjusted till passing of modification order. Further, the assessee has paid a sum of Rs. 2,01,745 on 31-3-2007 and Rs. 7.50 lakhs on 8-6-2010. Leaving all these there was an attachment of Rs. 30,34,965 by the department on 19-11-2009. In totality, the department is owing money to the assessee more than the admitted tax and these facts has been brought to the notice of the CIT(A) vide assessee's letter dated 29-6-2010. The CIT(A) brushed aside the arguments of the assessee stating that the amount paid by the assessee earlier to the demand notice cannot be considered as a due payment of admitted tax liability and also there was no claim by the assessee in its return dated 19-2-2008 for the assessment year 2007-08 regarding the adjustment of the tax already paid. Though the assessee has not made the claim regarding adjustment for already paid tax towards the admitted tax liability of 2007-08, the CIT(A) being quasi-judicial authority has to consider entire facts and circumstances of the case before dismissing the appeal of the assessee.....