2018 (12) TMI 1061

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....laring total income of Rs. 1,68,93,667. An order of assessment dated 28.12.2016 was passed u/s. 143(3) of the Income-Tax Act, 1961 ["the Act"] determining the total income of assessee at Rs. 2,69,27,824. Aggrieved by the additions made in the order of assessment, the assessee filed appeal before the CIT(Appeals). The CIT(Appeals) noticed that the assessee had not paid taxes on the returned income and therefore in view of the provisions of section 249(4)(a) of the Act, the appeal filed by the L/H of the assessee, Smt. Sushila Devi Malu was not maintainable and accordingly the assessee's appeal was dismissed in limine unadmitted. Aggrieved by the aforesaid order of CIT(Appeals), the assessee has filed the present appeal before the Tribunal. ....

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....l to the amount of advance tax which was payable by him : Provided that, in a case filling 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." 6. The Mumbai ITAT in the case of Bhumiraj Constructions Vs. ACIT 131 ITD 406 (Mumbai) had an occasion to deal with a case where an appeal by the Assessee was dismissed for non-payment of tax due on the income declared in the return of income. The Tribunal firstly observed that there is a distinction between a mandatory and directory provision. If the non-compliance with the requirement of law exposes the assessee to the penal provi....

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.... and the appeal is filed, that cannot be admitted. If, however, the appeal is filed without the payment of such tax but subsequently the required amount of tax is paid, the appeal shall be admitted on payment of tax and taken up for hearing. The Tribunal examined the objective behind s. 249(4) and observed that the same is to ensure the payment of tax on income returned before the admission of appeal. If such payment after the filing of appeal but before it is taken up for disposal validates the defective appeal, then there is no reason as to why the doors of justice be closed on a poor assessee who could manage to make the payment of tax at a later date. The stipulation as to the payment of such tax ante the filing of first appeal is only....