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TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1029
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....facts and circumstances of the Appellants case. 2. The learned Commissioner of Income-tax [Appeals] is not justified in dismissing the appeal in-limine holding that the appeal is not maintainable on account of non-payment of the tax on the returned income under the facts and in the circumstances of the appellant's case.. 3. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. the search conducted under section 132 of the Act at the residence of the appellant is not a valid search for the reason that the appellant was in no way related to or connected with the party in respect of whom the search was made namely, M/s. SPR Developers [P] Ltd on the facts and circumstances of the case. 4. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. Without prejudice, the entire assessment proceedings under section 153C of the Act is without. jurisdiction and is vitiated as the search was conducted at the residence of the appellant and if at all, the learned assessing officer ought to have passed th....
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....law and on facts in not adjudicating the ground raised by the appellant i.e. without prejudice, the learned assessing officer ought to have made an enquiry as to whether the payees to whom the said amount of professional expenses were paid have included the same in their total income and paid the taxes thereon. 12. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. without prejudice, the learned assessing officer failed to appreciate that the provisions of section 40[a][ia] are not applicable in respect of such expenditure, the payment for which was made during the year without deducting tax at source. The disallowance is possible only in respect of such expenditure, the payment for which was outstanding at the end of the year. 13. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. without prejudice, it is submitted that the learned assessing officer is not justified in making the disallowance under section 40[a][ia] when the appellant has not been held to be an assessee in default under s....
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....risdiction has been challenged the question of any admitted tax on the return does not arise as the entire assessment is sought to be cancelled or annulled on the facts of the case. Reliance is placed on the parity of the decision of the jurisdictional High court in the case of T.Govindappa setty 231 ITR 892 3. For the above and other Grounds that may be urged at the time of hearing of the appeal the appellant prays that the appeal be may allowed for the advancement of substantial cause of justice. 4. The Brief facts of the case are that there was search under Section 132 of the Act on 8.12.2011 and 14.12.2011 based on the warrant issued in the case of M/s. SPR Developers (P) Ltd. to search residence of assessee and survey under Section 133A of the Act at the office of the assessee and certain materials have been seized / impounded. Further Books of accounts and document belonging to the assessee are seized from the residence of the assessee. Subsequently, Notice under Section 153C of the Act dt.23.7.2013 was issued requiring the assessee to file the Return of Income. In response the assessee filed the Return of Income on 1.1.2014 with total income of Rs. 78,55,300. The assesse....
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....then, there was no necessity for the assessee to once again pay the admitted tax as a condition precedent to his filing the appeal before the Appellate Tribunal under Section of 1961 Act. Lastly, one must keep in mind the principle that the doctrine incorporation cannot be invoked by implication. A provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his fifing of appeal under Section 253(1)(b) of 1961 Act is dis-enabling provision. Such a dis-enabling provisions must be clearly spelt out by the Legislature while enacting the statute. The Courts have been careful in reading into the Act such dis-enabling provisions as that would tantamount judicial legislation which the Courts must eschew It is for the Parliament to specifically that no appeal shall be filed or admitted or maintainable without the assessee(s) paying admitted tax due. That has been done only in the case of an appeal under Section 249(4)(a) 1961 Act. We cannot read such a dis-enabling provision into Section 253(1)(b) of 1961 Act, do so, we are judicially legislating." Further the learned CIT(Appeals) observed relying on the judicial decision that the ....
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....e defects and therefore considering the time limit for passing the order under Section 153C of the Act, the Assessing Officer has treated the Return of Income as invalid in the eyes of law. The Assessing Officer at the time of passing the assessment order under Section 153C of the Act relied on the Return of Income filed by the assessee where the admitted taxes are not paid by the assessee which is not disputed and the assessee has kept the tax liability pending as per assessment order and filed appeal with the CIT (Appeals). We considered it appropriate to refer the provisions of Section 249(4) of the Act which read as under : "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 falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded ....