TaxTMI 
TaxTMI 
2005 (3) TMI 52
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....olding that the order of the Commissioner of Income-tax (Appeals) is bad because no application for exemption from operation of the proviso to section 249(4) was filed before the Commissioner of Income-tax (Appeals) and the Commissioner of Income-tax (Appeals) has not expressly passed an order exempting the assessee from payment of tax? 2. Whether, on the facts and circumstances of the case, the Commissioner of Income-tax (Appeals) would impliedly be-deemed to have exercised his powers under the proviso to section 249(4) of the Income-tax Act and exempting the assessee from payment of tax, when he proceeded to dispose of the appeal on the merits? 3. Whether the Tribunal is correct in law in relying upon the decision under the proviso to s....
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.... appeal, the assessee raised several grounds including some preliminary objection about passing of the ex parte assessment proceedings. The Commissioner of Income-tax (Appeals) allowed the appeal and while setting aside the assessment order, remanded the case to the Assessing Officer for making de novo assessment. In this view, he i.e., the Commissioner of Income-tax (Appeals) did not consider other issues on the merits which were raised by the assessee. It is against this order, the Revenue (Commissioner of Income-tax) filed an appeal to the Tribunal whereas the assessee filed cross-objections. By the impugned order the Tribunal allowed the appeal filed by the Revenue and dismissed the cross objections filed by the assessee. In the opinio....
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.... appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the October 1, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of- (i) where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is one hundred thousand rupees or less, two hundred fifty rupees; (ii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, five hundred rupees; (iii) where the total in....
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....t from April 1, 1989, in the proviso restricting applicability of the proviso to only cases falling in clause (b). In our opinion, if the Tribunal came to a conclusion and rightly so that appeal filed by the assessee before the Commissioner of Income-tax (Appeals) was not in accordance with the requirement of section 249(4) proviso, then the Tribunal while setting aside the order should have remanded the case to the Commissioner of Income-tax (Appeals) by granting an opportunity to the assessee to make an application as required under section 249(4), proviso, seeking exemption from payment of tax. Indeed, this right of the assessee could not have been taken away. In our opinion, compliance with section 249(4) is mandatory before the appea....