TaxTMI 
TaxTMI 
2021 (8) TMI 284
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.... by this consolidated order. It is noted that there is a delay in filing both the appeals before the Tribunal. In this regard, the assessee has moved an application for seeking condonation of delay along with an affidavit and the contents thereof reads as under:- "In connection with the subject cited above it is humbly submitted: 1. The appellant being a Pvt Ltd. Company got it's Books of Accounts Audited as per relevant provisions of Companies Act, 1956 and IT Act, 1961 and disclosed Net Profit of Rs. 37,10,130/- as appearing in Audited Profit & Loss Account. 2. The assessee due to Serious Financial hardships could not deposited the self assessment Tax and filed return of Income for the relevant A.Y.2013-14. 3. The AO completed the assessment Ex-party u/s 147/144 of IT Act vide assessment order dated 28.12.2017 at huge assessed Income of Rs. 2,93,38,850/-. 4. The assessee preferred appeal before ld. CIT(A)-III Jaipur against the relevant assessment order dated 28.12.2017 along with application for condoning delay of 34 days in filing of the appeal. 5. The ld. CIT(A)-III Jaipur observed that the assessee has not deposited the Advance Tax as provided u/s 249(4)(b) of....
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....assessee. 5. After carefully pursuing the application, the affidavit filed by the assessee and hearing the ld DR, we find that the assessee has reasonably explained the reasons for the delay in filing the present appeals on account of extreme financial hardship and on account of ongoing Covid pandemic, and in view of overarching principle of substantial justice to prevail over the technical glitches, the delay in filing the two appeals is hereby condoned and the appeals are admitted for adjudication. 6. In ITA No. 263/JP/2020, the assessee has taken the following grounds of appeal:- "1. Under the facts and circumstances of the case the ld. CIT(A) is not justified in dismissing the Appeal as un admitted due to non deposit of Admitted Tax/Advance Tax as provided u/s 249(4) of I.T. Act, 1961. 2. Under the facts and circumstances of the case the ld. CIT(A) is not justified in not disposing the following Grounds of appeal on merits. 2.1 Under the facts and circumstances of the case the AO is not justified in Estimating the Net Profit of Rs. 2,88,00,000/- by applying NP Rate of 8% of Gross Receipts of Rs. 36,00,00,000/-. 2.2 Under the facts and circumstances of the case the AO ....
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....assessee, the assessee has paid an amount equal 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." 11. On reading of the aforesaid provisions, it is noted that where the assessee has not filed its return of income, the assessee is required to pay an amount equal to the amount of advance tax which was payable by him which needs to be taken into consideration before the appeal is admitted for adjudication by the ld CIT(A). At the same time, the CIT(A) has been empowered to exempt the assessee from the payment of amount equal to advance tax on an application filed by the assessee. In other words, where the assessee did not file any return for the relevant assessment year, the assessee can file the appeal before the ld CIT(A) against the assessment order passed by the AO even without the payment of tax provided he satisfies the CIT(A) with the reasonable explanation for non-payment of taxes. Therefore, before the appeal is admit....
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.... 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 directory and not mandatory. Whereas the payment of such tax is mandatory but the requirement of paying such-tax before filing appeal is only directory. When the defect in the appeal, being the non-payment of such tax, is removed, the earlier defective appeal becomes valid. Once we call an appeal as valid, it is implicit that it is not time-barred. It implies that all the consequences which follow on the removal of defect are that the validity is attached to the appeal from the date when it was originally filed and not when the defect is removed. 10. The ld. AR submitted that the assessee was facing the financial crunch which led to the non-payment of tax on the returned income at the time required by the ld. CIT(A). It was claimed that on making the payment of tax, the appeal ought to have been admitted by the ld. CIT(A). He relied on the order passed by the Mumbai Bench of the Tribunal in the case of Anant R. Thakore v. Asstt. CIT [2006] 5 SOT 298 in which it has been held that the CIT(A) was not justified in dismissing th....