TaxTMI 
TaxTMI 
2021 (7) TMI 172
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....essment Year 1997-98. 2. Heard Sri A.V.Siva Karthikeya, learned Counsel for the petitioner, and Sri J.V.Prasad, learned Senior Standing Counsel, appearing on behalf of the respondents. 3. The petitioner contends that the 3rd respondent passed an Order of Assessment dt.31.03.2003, for the Assessment Year 1997-98 under Section 144 read with Section 147 of the Act, on the father of the petitioner, represented by the petitioner as the son and legal heir; that aggrieved by the said Assessment Order, the petitioner had filed an appeal before the 2nd respondent, as provided under the Act; the said appeal filed by the petitioner was dismissed by the 2nd respondent, by order dt.09.07.2003, holding that the appeal filed was void ab initio and c....
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.... of the Act, the 1st respondent shall not exercise the power of revision in respect of an order that has been made "subject of an appeal" to the Commissioner of Appeals or the Appellate Tribunal. Thus, the 1st respondent rejected the Revision petition without admitting the same. 6. The petitioner contends that the rejection of the Revision petition by the 1st respondent, is without proper appreciation and understanding of the scope and application of provisions of Section 264(4) of the Act; that since the appeal filed by the petitioner to the 2nd respondent having not been adjudicated, on merits and having been rejected as void ab initio due to non-payment of admitted tax due, the same cannot be considered as an "appeal adjudicated" unde....
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....1.03.2003, had been filed without payment of admitted tax due as per the return of income. Since, the admitted tax due is required to be paid for filing the appeal before the 2nd respondent for it to be entertained, and the appeal having been filed by the petitioner without making such payment, the said appeal, even if filed, cannot be considered as a validly presented appeal. It is for the said reason, the 2nd respondent, without adjudicating the matter on merits, has rejected the appeal as void ab initio, though by using the term as "dismissed". 11. Any appeal, which is not accompanied either by the requisite Court fee, or any other mandatory payment required to be made as per the provisions of the relevant Statute, cannot be considere....
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....er under Section 34. The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean subject of an "effective appeal", the High Court took into consideration the mischief that would otherwise arise, namely, all that an assessee, who wants to stifle the Board's suo motto pow....
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....he Appellate Tribunal, so much so that there is no effective disposal of the petitioner's appeal and, consequently, the first respondent has jurisdiction to revise the order which has been made the subject of appeal before the Appellate Tribunal." 15. It is also to be noted that Section 251(1)(a) of the Act stipulates that an appeal filed before the appellate authority to be considered as disposed, would require such order under challenge to be either confirmed, reduced, enhanced or annulled. It goes without saying that the disposal is by considering the merits of the matter. In the facts of the present case, the order passed by the 2nd respondent, in rejecting the appeal as void ab initio, cannot be considered as disposing the appeal by....