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2018 (10) TMI 503 - AT - Income TaxValidity of order passed by CIT(A) on merit - Filing of an appeal without depositing admitted tax u/s 249(4)(a) - Restoration of appeal filed second time - non-compliance of the statutory notice - Penalty under s.271(1)(c) - Held that:- Bare reading of Section 249(4)(a) gives an infallible impression that the appeal before the CIT(A) would lie for adjudication on merits only on satisfaction of the mandatory condition towards payment of tax determined as per the income returned. A waiver of such mandatory provision for adjudication of appeal on merits without compliance thereof is totally impermissible. Thus, the jurisdiction could not be conferred on the CIT(A) to adjudicate the appeal on merits even if acquiescenced or estoppel or the bar of res judicata being attracted because the order in such case would lack inherent jurisdiction unless the conditions precedent are fulfilled. The order passed in the first instance in contravention of Section 249(4)(a) of the Act is thus a void order and hence a nullity in the eyes of law. CIT(A) itself, in a similarly placed situation, has taken a favourable view in the penalty proceedings before it. Therefore we are of the view that the appellate order passed by the CIT(A) pursuant to appeal filed by the assessee prior to non-payment of admitted tax is a nonest order and deserves to be quashed. The appeal re-filed by the assessee before the CIT(A) thus requires to be restored and revived as a regular appeal for adjudication on all aspects as raised or sought to be raised before the CIT(A) including condonation of delay. Therefore, we admit the prayer of the assessee for restoration of appeal filed second time for its disposal in accordance with law.
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