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2015 (7) TMI 288 - ITAT MUMBAIDismissal of appeal as un-admitted - payment of tax before filing of the appeal - CIT(A) noticed that the taxes due on the income returned u/s 153A of the Act were not paid by the assessee on the date of filing of the appeal and as a consequence, he invoked the provisions of section 249(4) of the Act and dismissed the appeal - assessee pointed out that though the taxes due on the income returned were not paid by the assessee prior to the date of filing of appeal with the CIT(A) i.e. 27.01.2009 but the same were duly paid much before the CIT(A) passed the impugned order - Held that:- the Mumbai Bench of the Tribunal in the case of Bhumiraj Construction (2010 (4) TMI 754 - ITAT MUMBAI ) has in extenso considered the objective behind the insertion of section 249(4) of the Act, as it stood for the assessment year under consideration, and held that whereas the payment of tax due on the income returned is a mandatory condition but the requirement of paying such tax before filing of the appeal is essentially directory in nature. According to the Tribunal, where such defect in appeal, being non-payment of tax prior to filing of appeal, has been removed then the earlier filed defective appeal becomes a valid appeal. Notably, the Tribunal has also referred to the Judgment of Hon’ble Karnataka High Court in the case of D. Komalakshi V. DCIT [2006 (11) TMI 155 - KARNATAKA High Court ] in holding that on removal of defect, the earlier defective appeal becomes valid. Applying the similar parity of reasoning to the facts of the instant case, we find that herein the assessee made good the defect of nonpayment of tax due on the income returned before the CIT(A) passed the impugned order. Therefore, in our view, the CIT(A) ought not to have dismissed the appeal as un-admitted by invoking the provisions of section 249(4) of the Act, and instead the removal of defect by the assessee should have been recognized and the appeal filed by the assessee should have been determined on its merits. Therefore, in the facts and circumstances of the case, we hereby set aside the order of CIT(A) and restore the appeal back to his file for adjudication afresh on merits. - Decided in favour of assessee.
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