TaxTMI 
TaxTMI 
2003 (9) TMI 286
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....e search, various incriminating material was found and seized. In order to understand the factual background in a better way, it is worth to take note of the following details compiled by the assessee in paper books of respective appeals : Shri J.K. Chaturvedi Asst. yr. 1991-92 Return under s. 148 was filed on 29th March, 1995 Rs. Total income as per return under s. 148 17,45,940 Tax payable as per return 8,68,830 Interest 234B 8,34,076 Interest 234C 27,367 Total tax & interest payable 17,30,273 Orders passed Under section Date of order Assessed income (Rs.) Demand raised (Rs.) Tax Interest Total 143(1)(a) 31-3-1995 17,45,940 9,41,438 9,71,858 18,54,896 154 9-8-1995 17,45,940 3,83,038 3,08,930 6,91,968 144 r/w s. 147 21-1-1997 25,16,390 8,13,456 10,85,478 18,98,934 Appeal is filed against the assessment order dt. 21st Jan., 1997 (before the Tribunal) Details of taxes paid : Rs. Advance tax paid as per return 83,808 Adjustment made on 14-3-1995 1,035 Self assessment tax paid under s. 140A ....
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....t the assessment order dt. 27th March, 1996 (before the Tribunal) Details of taxes paid : Regular tax paid Rs. 22-6-2000 1,00,000 2-5-2000 1,00,000 1-5-2000 1,22,000 28-4-2000 13,000 27-4-2000 5,935 23-3-2000 1,00,000 29-2-2000 1,00,000 Tax paid to TRO 20-2-1998 2,00,000 23-2-998 3,00,000 23-2-1998 25,000 12-3-1998 1,00,000 11-2-1998 2,05,000 16-3-1998 2,25,000 24-3-1998 2,09,892 24-3-1998 2,00,000 31-3-1998 1,00,000 31-3-1998 1,00,000 22,05,827 Appeal before the CIT(A) was filed on 12th April, 1996 4. Thus, from the details extracted above, it is explicit clear that assessee has to revise his returns consequent to the disclosure made during the search and this has given a substantial rise on tax liability to the assessee. 5. The assessment under s. 143(3) in asst. yr. 1993-94 and under s. 144 r/w s. 147 were framed in asst. yrs. 1991-92 and 1992-93, thereby learned AO made number of additions. Since the issue regarding addition on quantum has not been agitated before us, thus, for the time being it is necessary to divulge those details. ....
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..... 8. The learned Departmental Representative, while controverting the argument of learned counsel, specifically pointed out that word "shall" has been used in sub-s. (4) of s. 249, which contemplates that no appeal under this chapter can be entertained upto and until compliance of s. 249(4) is made. He contended that for the learned first appellate authority there is no option except to dismiss the appeals in limine as the assessee had not paid the agreed taxes. Therefore, these appeals also deserve to be dismissed. 9. We have duly considered the rival contentions. From the perusal of record and on consideration of respective arguments, following points have emerged out for our adjudication : (1) Whether the Tribunal has powers under s. 254(1) to give a finding that an appeal filed in violation of s. 249(4) would be termed as defective one and the moment the defect is cured by making payment of agreed tax, the appeal can be decided on merit subject to limitation provided in s. 249(2) and its condonation thereof as per s. 249(3). (2) Whether non-availability of funds for making payment of agreed taxes with the assessee could be considered as a reasonable caus....
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....#39;ble Supreme Court had considered the ambit and scope of expression "pass such orders therein as it thinks fit", used in s. 33(4) of IT Act, 1922, which is analogous to 254(1) to 1961 Act, At p. 237, the Hon'ble Supreme Court made following observation : "The word 'thereof', of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the AAC by s. 31 of the Act. Consequently, the Tribunal has authority under this section to direct the AAC or the ITO to hold a further enquiry and dispose of the case on the basis of such enquiry." 12. Then again this expression fell for consideration before the Hon'ble Supreme Court in the case of CIT vs. Assam Travels Shipping Service (1993) 199 ITR 1(SC). In this case, assessee filed the return late for asst. yrs. 1963-64 and 1964-65. Thus, violated s. 271(1)(a)(2) of the Act. The learned AO levied the penalty. However, while calculating the penalty, he worked out the amount at a very lower figure. He levied the penalty at Rs. 6,494 and Rs. 70....
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....(3) and (4), it is inferred that defect arises due to non-compliance of s. 249(4) is a curable one and in a given case if the Tribunal is satisfied that there exist sufficient reasons for curing such defects after expiry of limitation, it would be in the realm of Tribunal's discretion to restore such matters to the file of the CIT(A) for deciding the controversy on merit because sub-s. (1) of s. 254 provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice. 14. On personal of record, we find that the assessee has discharged the huge tax liability of more than Rs. 75 lacs in instalments. Thus, it would be totally unfair for not providing an opportunity to him for disputing the additions made by the AO on merit. The Hon'ble Full Bench of Delhi High Court in J.T. (India) Exports & Anr. vs. Union of India & Anr. (2002) 177 CTR (Del)(FB) 108: (2003) 262 ITR 269(Del)(FB), while elaborating the principle of natural justice along with the legal justice, has observed as under : "Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained....
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....87) 60 CTR (Ori) 96: (1987) 167 ITR 173(Ori). Though the issue before the Hon'ble High Court was on a little different footing, but an inference can be drawn from the judgment that in such cases the right course would be restoring the appeal before the CIT(A). Before the Hon'ble Orissa High Court, the issue relates to asst. yrs. 1974-75 and 1975-76. The learned AO determined the income of assessee at Rs. 17,500 and Rs. 30,000. Against this order, the appeals were filed before the first appellate authority on 29th Oct., 1975. By then s. 249 has been amended by incorporating sub-s. (4) w.e.f. 1st Oct., 1975. The learned first appellate authority dismissed the appeal of the assessee in limine on the ground that assessee failed to pay the agreed tax at the time of filing of the appeal. During the pendency of appeal before the Tribunal, the assessee paid agreed tax on 15th June, 1976. The Tribunal set aside the order of the learned CIT(A) and restored the matter back to the file of first appellate authority. The Revenue has challenged the order of the Tribunal on the ground that decision given by the first appellate authority was not one under s. 250 of the Act and, therefore, n....