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2021 (8) TMI 284 - AT - Income TaxAppeal before CIT(A) - Non deposit of admitted tax/advance tax as provided u/s 249(4) - HELD THAT:- On perusal of the order of the ld CIT(A), we find that the ld CIT(A) has not admitted the appeal for want of payment of taxes equal to advance tax by the assessee. Apparently, there is nothing on record which suggests that the assessee has moved any application before the CIT(A) seeking exemption from payment of taxes. The assessee has moved an application seeking admission of additional evidence by way of tax challans disclosing payment of ₹ 13 lacs equal to advance tax as per section 249(4)(b) for the impugned assessment year. As noted that taxes have been deposited by the assessee before filing of appeal before the ld CIT(A), the taxes amounting to ₹ 2 lacs have been deposited after filing of appeal before the ld CIT(A) and ₹ 5 lacs have been deposited after passing of the impugned order by the ld CIT(A) which reasonably explains the financial hardship faced by the assessee and also its earnestness in taking the necessary steps to be in compliance with the provisions of section 249(4)(b) and to be heard on merits. As the assessee has deposited an amount of ₹ 13 lacs equal to advance tax as per section 249(4)(b) for the impugned assessment year, the additional evidence by way of tax challans towards payment of taxes are hereby admitted and consequent thereto, the appeal by the assessee against the order of assessment need to be admitted and adjudicated by the CIT(Appeals) on merits. Payment of tax is mandatory but the requirement of paying such tax before filing appeal is only directory and where the defect in the appeal, being the non-payment of such tax, is removed, the earlier defective appeal becomes valid, applies equally to clause (b) sub-section (4) of section 249 - where the admitted taxes are paid at a later point of time, then the appeal of the assessee should be considered as properly instituted and should be heard and decided by the CIT(Appeals) on merits. Considering the same, the matter is set- aside to the file of the ld. CIT(A) with the directions to verify and consider the payment of taxes towards due discharge of the assessee’s liability as per provisions of section 249(4)(b) of the Act and decide the matter on merits after providing reasonable opportunity to the assessee.
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