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2010 (4) TMI 14 - SUPREME COURTPayment of Tax before filing an appeal before ITAT u/s 249(4)(a) - According to the assessee, Section 249, which deals with Appeals to the Commissioner (Appeals), falls in Chapter XX(A), whereas Appeals to the Appellate Tribunal under Section 253(1)(b) falls in Chapter XX(B). - After going through the provisions of Section 249(4)(a) and Section 253(1)(b) of 1961 Act, which, at the relevant time, dealt with an order passed by the Assessing Officer under Section 158BC(c) of 1961 Act, the Appellate Tribunal held that one cannot read Section 249(4)(a) into the provisions of Section 253(1)(b) of 1961 Act; that while Section 253(1) was an enabling provision giving right of appeal to the assessee to file an appeal to the Appellate Tribunal, there was no provision similar to Section 249(4)(a), which fell in Chapter XX(A) in Section 253(1)(b), hence, it was not a condition mandatory to the filing of the appeal to the Appellate Tribunal to pay undisputed tax amount as condition precedent – held that - . It is for the Parliament to specifically say that no appeal shall be filed or admitted or maintainable without the assessee(s) paying the admitted tax due. That has been done only in the case of an appeal under Section 249(4)(a) of 1961 Act. We cannot read such a dis-enabling provision into Section 253(1)(b) of 1961 Act. If we do so, we are judicially legislating by reading something into the Act which is not there. In such a case, the question would also arise as to why the Appellate Tribunal should not be given the power to dispense with or waive such a condition? All this would come in the realm of legislation which can be done only by the Legislature. Hence, we find no merit in these civil appeals filed by the Department. – revenue’s appeal dismissed.
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