TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 503
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....nder s.271(1)(c) of the Act arising from the order of the CIT(A) dated 20.01.2015 in relation to penalty order passed by the AO dated 20.06.2007 under s.271(1)(c) of the Act concerning AY 2003-04. 2. We shall first take up quantum appeal in ITA No.858/Ahd/2015 for adjudication purposes. 3. When the matter was called for hearing, the learned AR submitted that the assessee is aggrieved by the disallowance on account of loss on sale of certain investments amounting to Rs. 29,31,239/-. The learned AR however in the same vain, pointed out that the CIT(A) has dismissed the appeal of the assessee as non maintainable on the grounds of lack of jurisdiction. The learned AR adverted to the peculiar facts of the case to submit that the assessee filed....
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....n-est and not maintainable at the threshold. When the first order on a non-maintainable appeal is non-est, the CIT(A) ought to have entertained the appeal filed for adjudication again after payment of taxes in the second round of proceedings. There is no review in the present case as the first order was non-est at the threshold and was not passed on merits. The learned AR also pointed out that the CIT(A) has taken a contradictory stand and rejected the appeal filed before the CIT(A) in quantum proceedings on the ground of disposal of appeal earlier; whereas in the similar circumstances and for the same cause of action, the CIT(A) agreed with the plea of the assessee that appeal filed before the CIT(A) earlier could not lie before the CIT(....
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....herently inadmissible appeal having regard to the fact that the assessee failed to comply with the stipulations made in Section 249(4)(a) of the Act towards payment of admitted tax. The appeal once again filed before the CIT(A) after broad compliance of Section 249(4)(a) of the Act is therefore the effective appeal maintainable before the CIT(A) for adjudication on merits. This position taken by the assessee has been accepted by the CIT(A) albeit in penalty appeal. The relevant operative para of the order of the CIT(A) in penalty appeal is reproduced hereunder for ready reference: "5. I have considered the facts of the case as well as the order of the AO and the submission of the AR of the appellant. The facts involved in the case of appe....
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....nn.com 119. In this particular case the question before the Hon'ble ITAT arose as to whether CIT(A) can not admit an appeal u/s 249(4) in case of default of not payment of tax, but on removable of defect of nonpayment of tax an appeal deserves to be admitted. The Hon'ble ITAT has replied this question in affirmative i.e. yes. As per the Hon'ble ITAT on removable of defect on nonpayment of tax an appeal can be admitted. The Hon'ble ITAT, Ahmedabad, Bench WC" after following the decision of Hon'ble ITAT, Mumbai in the case of Sai Krupa Construction Company, 13 SOT 459 has held that if an appeal has been filed after making payment of unpaid taxes, it cannot be said that the requirement of section 249(4) has not been com....
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....e appeal re-filed by the assessee before the CIT(A) thus requires to be restored and revived as a regular appeal for adjudication on all aspects as raised or sought to be raised before the CIT(A) including condonation of delay. Therefore, we admit the prayer of the assessee for restoration of appeal filed second time for its disposal in accordance with law. Consequently, while the order of the CIT(A) dated 03.01.2007 is quashed, the second order of the CIT(A) dated 20.01.2015 which is subject matter of the appeal before us, is set aside and restored and all the issues in relation to the appeal connected are remanded back to the file of the CIT(A) for its consideration afresh and adjudication in accordance with law. 7. In the result, appeal....