AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 1374
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....al on merits. Ground 2: Against non appreciation of judicial pronouncements On the facts and circumstances of the facts and in law the learned CIT(A) erred in not appreciating the decisions of various High Courts and Apex Court holding that if the admitted tax has been paid subsequently the appeal ought to be admitted as maintainable. The Appellant prays that the learned CIT(A) be directed to admit the appeal and decide the appeal on merits. Ground 3: The Appellant craves leave to add, amend any or all grounds at the time of hearing. 2. Ld. AR of the assessee has submitted that the ld. CIT(A) has dismissed the appeal of the assessee in limine due to non-payment of self-assessment tax at the time of filing the appeal though the assessee duly paid the full tax during the pendency of the appeal and before impugned orders were passed. He has referred to the details of payments of the self-assessment tax and submitted that due to financial crises and closure of the business of assessee company, the assessee was facing a serious financial crunch which has led to non-payment of the self-assessment tax at the time of filing of the appeal required u/s 249(4)(a) of the Act. He ....
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....eturn by him. Thus, it is clear that there is no limitation prescribed for payment of the tax but it is required to be paid at the time of filing the appeal and consequently the delay in payment of the due tax on the return income can be at the most considered as delay in filing the appeal. The Bangalore Bench of the Tribunal in case of M/s. Fiza Developers & Inter Trade P. Ltd (supra) has considered this issue in para 4 as under: "04. We have perused the orders and heard the rival contentions. Copy of the return filed by assessee show that the total amount of tax payable was Rs.87,14,679 TDS against the above amount was Rs.16,90,412/-. Assessee has enclosed self-assessment tax challan for Rs.45,79,085/- paid on 28.01.2010, Rs.25,00,000/- paid on 31.03.2006 and Rs.36,33,854/- paid on 30.05.2006. Thus the admitted tax stood fully paid by 2010. CIT (A) dismissed appeal of the assessee for the sole reason that admitted taxes were not paid relying on sub- section (4)(a) of Section 249 of the Act. That, once admitted tax is paid, appeal has to be decided on merits in a settled position of law by virtue of judgment of Hon'ble jurisdictional High Court in the case of CIT v. K. Satis....
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....statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself, following the rules of natural justice, would be violative of any right, constitutional or statutory without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it it upon fulfilment of those conditions that the right becomes vested in, and exercisable by, the appellant. If discretion is vested, then there is an obligation to act judicially and properly. The purpose of such restriction is to act in terrorem to make the people comply with the provisions of law. Therefore, the object of stipulating conditions such as demand of admitted tax is a condition precedent for entertaining the appeals and admitting the appeals is to see that the appellant obeys the law, Though the right of appeal is conferred under a statute, the said right is subjected to the restrictions imposed under the very same statute. There cannot be any absolute right de hors the provisions of the statute. Therefore, in the instant case, the statute has conferred a right of appeal. It also in unequivocal terms expressly has stated that in cases where the ....
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.... Section 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 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 Hon'ble Karnataka High Court in the case of CIT Vs. K. Satish Kumar Singh 2012 209 Taxman 502(Karn.) and in the case of Principal CIT Vs. Abdul ahid M 394 ITR 727 (Karn.) took the view that if admitted tax on returned income is paid then the appeal has to be admitted for adjudication by the CIT(A) and held that Tribunal was right in directing the CIT(A) to hear and decide the appeal of the Assessee on merits. The Hon'ble Mumbai ITAT in the case of Bhumiraj Constructions Vs. ACIT 131 ITD 406 (Mumbai) had an occasion to deal with a case w....
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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. The Tribunal ultimately held that if tax due on income returned is paid even after disposal of the appeal by the CIT(A), if such payment is made the defect in the appeal due to noncompliance of a directory requirement of paying such tax before the filing of the appeal, stood removed. Ex consequential the appeal should have been revived by the first appellate authority. 7. In the present case, the taxes due on returned income is claimed to has been paid. Therefore the appeal by the As....