TaxTMI 
TaxTMI 
2015 (3) TMI 1259
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....ore for all the A.Ys. 2005-06, 2007-08, 2008-09, 2009-10 & 2011-12, which were dismissed on the ground that the assessee has not complied with the provisions of sec. 249(4)(a) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act', for short) and the same was served on 28/04/2012. The assessee should have filed before the ITAT on or before 03/06/2014. After completion of assessment proceedings, recovery proceedings have been initiated and all his income has been attached by the Income-tax Department and assessee had no fund to pay the taxes. Therefore, there was a delay of 76 days in instituting the appeals due to reasonable cause and beyond his control and delay was neither intentional, wilful nor deliberate, therefore, delay may be condoned and appeals may be disposed of on merits. 3. Learned DR opposed the application for condonation of delay and prayed for its rejection. 4. We have heard rival contentions of both the parties. We have also verified the provisional balance sheet of the assessee for the A.Y. 2012-13 & 2013-14 and from this provisional balance sheet, we find that assessee had not sufficient fund, therefore he was not able to pay the taxes. ....
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....] has erred in dismissing the appeal as nonmaintainable u/s.249[4][a] of the Act, when in her opinion it was not to be admitted and thus not maintainable on the ground that the taxes on the income reported was not paid before the date of filing the appeal under the facts and in the circumstances of the appellant's case without appreciating that the appeal can be disposed of as dismissed only after its admission and not otherwise. 2.1 Without prejudice to the contention the provisions of section 249[4][a] of the Act, would not be applicable at all on overall consideration of the income admitted for various years and the learned CIT[A] ought not to have considered the payment of tax in isolation for the year under appeal by taking a pedantic view instead of holistic view of the matter and if the appeal was not maintainable it should not be disposed of at all even by dismissal, as there was no power to admit the appeal for disposal and the impugned order of disposal of the appeal by dismissal as nonmaintainable u/s.249[4][a] of the Act, is erroneous and requires to be set-aside and it is prayed that the delay in payment the admitted taxes now on 03/09/2014, is due to reas....
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....gal and having regard to the parity of the ratio of the decision of the Hon'ble Supreme Court in the case of AJITH JAIN reported in 260 ITR 80 [SC] and the decision of the jurisdictional High Court in the case of C.RAMAIAH reported in 339 ITR 210 [Kar], there could not be any assessment u/s.153A of the Act, against the appellant. 5. Since there was no search against the appellant, there could not be any assessment u/s.153A of the Act and no assessment proceedings are initiated against the person searched to invoke the jurisdiction u/s.153C of the Act, against the appellant. 6. Without prejudice to the above, assuming for argument's sake without conceding that the jurisdiction u/s.153A of the Act is validly assumed, the transfer of the appellant's case from Hospet to Belgaum, is illegal, as the reason for transfer have not been communicated to the appellant as required by section 127 of the I.T.Act and as per the ratio of the decision of the Hon'ble Supreme Court in the case of AJANTHA INDUSTRIES reported in 102 ITR 281 and consequently, the notice issued U/S./153A is bad in law and liable to be cancelled. 7. Without prejudice to the above,....
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....or the information from the Assessing Officer. The Assessing Officer has informed that the assessee has not paid due taxes on the return of income. On this basis, Ld. CIT(A) has dismissed the appeal by observing as under:- "5. In view of the provisions of sec. 249(4)(a) supported by the judicial pronouncements discussed above, it is clear that if the appellant does not pay the taxes due on the returned income before filing appeal u/s. 246A, the same cannot be admitted as per provisions of sec. 249(4)(a) of the Income Tax Act. In the case of the appellant for above assessment year, taxes due on returned income have not been paid before filing appeal and therefore, appeal in question is not maintainable. 6. In the result, the appeals are not admitted and for statistical purposes the appeals are treated as dismissed." 7. Learned AR submitted before us that when assessee filed the appeal on 26/04/2013 before the Ld. CIT(A), the assessee has not paid the admitted tax. The Ld. CIT(A) in his order has dismissed the appeal on the ground that the assessee has not paid the admitted tax a per the provisions of sec. 249(4)(a) of the Act. The assessee is required to pay the....