TaxTMI 
TaxTMI 
2017 (4) TMI 1616
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....also not explained in the capital account and balance sheet filed along with return of income for this year. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the addition of Rs. 6,64,000/- made on account of deemed rent from Janjira Bungalow and flat in White Tower without appreciating the fact that section 23(2)(b) would not be applicable in this case because assessee owns more than one house property. 3. The appellant prays that the order of Commissioner of Income-tax (Appeal) on the above ground be set aside and that of the Assessing Officer be restored. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary." ITA No. 1496/Mum/2012 (A.Y : 2003-04) :- "1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in restricting the addition made on account of unexplained investment in Janjira Bungalow from Rs. 20 lacs to Rs. 17 lacs ignoring the statement of assessee made during the search. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in not remanding the matter to....
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....ted 10/12/2015 (supra). 4. In this background, Ld. Departmental Representative appearing for the Revenue was required to state his position. He has not brought out any material to suggest that the three appeals are protected by any of the circumstances prescribed in Para-8 of the Circular dated 10/12/2015 (supra) and as a consequence such appeals are liable to be treated as withdrawn/not pressed. The relevant portion of the circular dated 10/12/2015 (supra) is reproduced below:- "3. Henceforth appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:- Sl. No. Appeals in Income-tax matters Monetary Limits (In Rs.) 1 Before Appellate Tribunal 10,00,000 2. Before High Court 20,00,000 3. Before Supreme Court 25,00,000 .......................................................................................................... 4. For this purpose, "tax effect" means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal....
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....contravention of the CBDT Circular dated 10/12/2015(supra). 6. In conclusion, by applying the CBDT Circular dated 10/12/2015(supra), the three appeals of the Revenue are dismissed as withdrawn/not pressed. 7. Now, we take up assessee's appeals, which are directed against the respective orders of the CIT(A)-41, Mumbai, dated 13/12/2011, pertaining to the Assessment Years 2008-09 and 2009-10, which in turn have arisen from the orders passed by the Assessing Officer dated 27/12/2010 under section 143(3) r.w.s 153A of the Act. 8. As the facts in both the assessment years are similar, therefore, the appeal in ITA No. 1222/Mum/2012 for Assessment Year 2008-09 is taken as the lead case. 9. In this appeal, assessee has taken the following Grounds of appeal :- "1. Considering the facts and circumstances of the case, the Commissioner of Income Tax (Appeals) - 41, Mumbai, (hereinafter, for the sake of brevity, referred to as 'the CIT(A)') erred in facts and in law in dismissing the appeal of the appellant on account of nonpayment of tax due as per income returned and the same ought to be restored to the file of CIT(A). 2. Considering the facts and circumstances of th....
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....249(4) of the Act and noted that the assessee had not paid the tax on the income of Rs. 6,32,11,810/- declared in the revised return filed on 12.11.2010 and, therefore, the appeal was dismissed as unadmitted. 12. Before us, the learned representative for the assessee vehemently pointed out that the CIT(A) has erroneously considered the return filed on 12.11.2010 inasmuch as the same was non-est in the eyes of law. The learned representative pointed out that in the present case no return was filed u/s 139(1) of the Act and that even the return dated 5.10.2009 filed in response to notice u/s 153A of the Act was filed belatedly, therefore, the revised return filed by the assessee on 12.11.2010 was not a valid return within the meaning of Sec. 139(5) of the Act. On this basis, it was pointed out that though the assessee filed the revised return on 12.11.2010 voluntarily, but it could not be treated as a valid return because the original return itself was belated and in support of the said proposition, he has relied on the judgment of the Hon'ble Bombay High Court in the case of Menezes Fernandes Enterprises, [2013] 30 taxmann.com 388 (Bombay). The learned representative emphasiz....
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....y the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause." Quite clearly, the case of assessee falls in clause (a) of Sec. 249(4) of the Act as assessee had filed a return of income. Thus, in terms of Sec. 249(4)(a) of the Act, assessee ought to have paid the tax due on the income returned by him at the time of filing of appeal before the CIT(A). The first issue in this appeal is what is the connotation of the expression "return" contained in clause (a) of Sec. 249(4) of the Act? As per the Revenue, compliance of Sec. 249(4) of the Act has to be seen vis-à-vis the revised return filed by the assessee on 12.11.2010 whereas as per the assessee, the relevant return is the one filed on 18.11.2009. The revised return filed on 12.11.2010 is claimed to be non-est in the eyes of law inasmuch as it could not have been filed in terms of Sec.139(5) of the Act. The learned representative has made a statement at Bar that assessee has not filed a regular return as required u/s 139(1) of the Act and further, even the return filed on 18.11.2009 in response t....
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....eal before the CIT(A) deserved to be treated as unadmitted. It is also axiomatic that so far as the situation contemplated in clause (a) of Sec. 249(4) of the Act is concerned, the CIT(A) is not vested with any power to waive payment of the admitted tax and entertain the appeal in contrast to the situation contemplated in clause (b) to Sec. 249(4) of the Act. However, the defense put up by the appellant is that the non-payment of admitted tax on returned income is a curable defect and once such a defect has been cured, there is enough justification for the appeal being admitted by the CIT(A). Our coordinate Bench in the case of Smt. Banu Begum, [2012] 22 taxmann.com 235 (Hyd) has observed that non-payment of admitted tax is a defect which can be cured by payment of tax. In fact, the Hon'ble Karnataka High Court in the case of K. Satish Kumar Singh, [2012] 19 taxmann.com 154 (Kar) noted that even after the dismissal of appeal by the CIT(A) for non-payment of admitted tax, if assessee pays the admitted tax, even then the CIT(A) may recall the order dismissing the appeal and consider the appeal on its merits. In view of the aforesaid proposition, in the present case too, since the....