TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 888
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.... dates as initially time was sought by the Ld. CIT DR to go through the order relied upon by the assessee in its favour canvassing for setting aside the impugned order and a direction to the CIT(A) to decide the appeal on merit. Thereafter on conclusion of the hearing and at the time of dictation it was noticed that Power of Attorneys in different dates (totaling three in all) are available on record in favour of different persons including and apart from the Counsels present. The appeal accordingly was fixed for clarification and the assessee filed a letter dated 11.10.2013 through the counsel vide letter dated 11.11.2013 that the Power of Attorney in favour of the two counsels originally named be acted upon. Since on the said date the CIT DR was on leave the hearing concluded thereafter when both the parties repeated their stand which we propose to now discuss. 3. On the date of hearing Ld. AR invited attention to the impugned order to show that the appeal was held to be non-maintainability in terms of 249(4) of the Income Tax Act by the CIT(A) on account of the fact that on the date of filing of the appeal, the tax payable on the total income remained unpaid as such the appeal ....
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....eliance was placed upon the judgements of the Madras High Court and Karnatka High Court in the case of the S.Alagarswamy vs ITO [2008] 296 ITR 43 (Mad.) and D.Komalakshi vs DCIT [2007] 209 CTR (Kar.) 70 wherein it has been held that the mandatory provision do not allow him any discretion. In the circumstances it was submitted by the Ld. CIT DR that the order of the CIT(A) considering the legal position was duly supported. The law it was argued does not allow the CIT(A) to consider the argument of the liquidity problem faced if any by the assessee-appellant. It was also submitted that the CIT(A) although has held that liquidity position was also not substantiated by any evidence. It was further argued that seizure of the bank account as a factor in not depositing tax in time cannot be accepted. Relying on the requirements of section 249(4) it was submitted that the mandatory provision using the word "shall" does not empower the CIT(A) with any discretion to waive the requirement. The decisions sought to be relied upon it was argued were distinguishable. 5. We have heard the rival submissions and perused the material available on record. The facts of the case at hand have been dwelt....
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....he 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." 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 which was payable by him. Provided that, in a case filing under clause (b) and on an application made by the appellant in this behalf, the CIT(A) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause. " Section 254(1) Orders of Appellate Tribunal: "The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." 11. For considering the powers of Tribunal contemplated in sub- section (1) of section 254, it would be imperative for us to refer the judgment of the Hon'ble Supreme Court rendered in the case of Hukumc....
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....s the power even if the enhance the penalty subject to the requirement of sub-section (2) of section 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. V. CIT[1967) 63 ITR 232(SC)" (P 6). 13. On plain reading of sub-section (3) of section 249 shall reveal that if the assessee showed sufficient reasons for late filing of his appeals, then such delay cab be condoned and controversy would be silenced on merit. Similarly, for sake of explanation, if an assessee did not have sufficient funds for complying the requirement of section 249(4) and has not filed the appeal within the tie provided under section 249(2). Subsequent to expiry of limitation he made compliance of section 249(4) and filed the appeal with a prayer of condonation of delay then it would be in discretion of the first appellate authority to see whether sufficient reasons for late filing of appeal exist or not. If the learned CIT(A) arrived at a conclusion that su....
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....lhi 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 installments. 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. For example, the total tax required to be paid by the assessee in assessment year 1991-92 on the agreed return with interest was Rs.17,30,273. Against it, by the end of the December, 1997, assessee has paid Rs.26,09,843. Thus, it clearly indicates that assessee was not having sufficient funds at the relevant time for compliance of section 249(4), which rendered the appeals of the assessee as defective one. In the interest of justice, we are of the opinion that these appeals deserve to be allowed by setting aside the impugned order of the CIT(A) and restoring the same before the learned first appellate authority for adjudication on merit. 16. The next issue for our adjudication is whether sufficient, r....
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....taking into consideration the overall facts and circumstances of the case we are of the opinion that these appeals deserve to be allowed and accordingly, allowed. We set aside the order of the learned CIT(A) and restore the matters before his for deciding the controversy on merit." 5.1. A perusal of the said order dated 31.08.2012 of the Delhi Bench in the case of Rakesh Kumar Garg wherein one of us (Ld. Accountant Member is a party) it is seen has also considered the following two judgements of the Hon'ble Karnataka and Madras High Court amongst orders of the Tribunal on which heavy reliance has been placed by the Revenue:- "1. D.Komalakshi vs DCIT reported in 162 Taxman 16 (Kar.); 2. S.Alagarswamy vs. ITO reported in (2008) 296 ITR 0043 (Mad.)" 5.2. Accordingly it is seen that the said decisions have already been taken into consideration therein as such in the absence of any distinguishing fact or circumstance the view taken by a Co-ordinate Bench where one of us (Ld. Accountant Member) was a party has to be followed in judicial propriety. In the facts of the present case admittedly at the time of filing of the appeal before the CIT(A) the tax due on the income returned was n....