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2017 (4) TMI 1616 - ITAT MUMBAIAppeals to the Joint Commissioner (Appeals) and Commissioner (Appeals) - appeal as unadmitted by wrongly invoking the provisions of Sec.249(4) - as per DR assessee has not paid the tax due on the income returned at the time of filing of appeal before the CIT(A) and, therefore, the provisions of Sec.249(4)(a) of the Act have been validly invoked in dismissing the appeal - What is the connotation of the expression “return” contained in clause (a) of Sec. 249(4) of the Act? - HELD THAT:- The requirements of Sec. 249(4) of the Act have to be examined with reference to the tax payable on the income declared in the return filed on 19.11.2009. The rigors of Sec. 249(4)(a) of the Act clearly come into operation and the appeal 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). As 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). Since the assessee has claimed that it has paid tax on the returned income before passing of order by the CIT(A), in our view, it will be in the fitness of things that the matter is remitted back to the file of CIT(A) to be considered afresh. Assessee has made a tabulation showing payment of tax on various dates and also challans evidencing the payment of admitted tax. We deem it fit and proper to remit the matter back to the file of CIT(A) who shall verify whether the entire admitted tax has been paid and if it is so found, he shall proceed to decide the various Grounds raised by the assessee on merits.
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