TMI Blog1995 (1) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CIT(A). The CIT(A) observed that the assessee has not paid the tax due on the income returned and, therefore, the appeal cannot be admitted as per provisions of section 249(4). Therefore, he dismissed the assessee's appeal in limine. Against the order of the CIT(A), dismissing the assessee's appeal in limine, the assessee has preferred appeal before the ITAT. 2.1. At the time of hearing before us, the id. DR raised objection in admitting the appeal against the above order of the CIT(A). He submitted that the order of the CIT(A) is u/s. 249(4) of the Income-tax Act and not u/s. 250 and, therefore, appeal to the Income-tax Appellate Tribunal is not competent. He submitted that u/s. 250, the CIT(A) can pass the orders as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 2.2. On the other hand, the Id. counsel for the assessee submitted that the assessee had filed an appeal, before the CIT(A), against the order of the AO u/s 143(3) of the Income-tax Act. The order of the CIT(A) dismissing the assessee's appeal amounts to order u/s. 250 of the Act and, therefore, the appeal to the ITAT is competent. In this respect, he relied upon the following decisions:-- CIT v. Kalipada Ghosh [1987] 167 ITR 173 (Ori.), Mela Ram Sons v. CIT [1956] 29 ITR 607 (SC), CIT v. Nanhibai Jaiswal [1988] 171 ITR 646 (MP). Regarding the payment of tax he submitted that there was search at the premises of the assessee on 8-11-1990. In the search cash amounting to Rs. 5,50,000 was seized. The assessee on 27-11-1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for exemption and dismissed the appeal in limine. On appeal, the Tribunal allowed the assessee's appeal and remanded the matter to the CIT(A) with a direction to dispose of the appeal afresh in a reference before the Hon'ble Madhya Pradesh High Court, the revenue contended that the order passed by the CIT(A) was not an order u/s. 250 but an order u/s. 249(4) and, therefore, the appeal to the Tribunal was not maintainable. The Hon'ble High Court rejecting the revenue's reference held "That since the appeal was not admitted on the ground that the amount of tax as contemplated by clause (a) of section 249(4) had not been paid, the order passed by the Commissioner amounted to an order disposing of the appeal u/s. 250 and, therefore, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1922. Even the Id. DR has conceded to this position. 3.4. The ld. DR has relied upon the decision of the Supreme Court in the case of Mtt. AR. S. AR. Arunachalam Chettiar . But we find that the facts of that case and the issue involved before the Hon'ble Supreme Court were altogether different than the issue under appeal before us. 3.5. Similarly, in the case of Girdher Javar Co. and Lalji Haridas the facts were altogether different. In these two cases the first appellate authority had issued the direction to the AO for making further enquiries pending the disposal of appeal before him. The assessee had moved an appeal to the Tribunal against such direction. On these facts, it was held by their Lordships that the appeal to the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee filed a return of income on 23-11-1992. In the statement of total income, filed along with the return of income, after the computation of income at Rs. 8,03,980 there was a working of taxes as under : Income Tax Surcharge Total Tax on : Rs. 5,00,000 2,27,600 27,312 2,54,912 3,03,980 1,51,990 18,239 1,70,229 ----------------------- 4,25,141 ----------------------- Taxes paid (a) Cash seized on search on 8-11-1990 5,00,000 (b) Cash found of 8-11-1990 but shown as seized on 12-11-1990 50,000 5,50,000 ----------------------- Refundable : 1,24,809 ----------------------- However, the revenue adjusted on 8-11-1993 the seized amount of Rs. 5,00,000 against the tax payable by the assessee for the asst. year und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer the revenue to apply the assets seized and retained against the tax liability of the assessee unilaterally. But when the assessee himself requested for treating the cash seized as the "tax paid" by him, there is no necessity of application of section 132B. The only purpose of the assets seized by the revenue u/s. 132(1) and retained u/s. 132(5) is to utilize the same against the tax liability of the assessee whenever it may arise. Therefore, when the assessee himself requests that the amounts seized may be treated as tax paid by him, we believe that there cannot be and should not be any objection to the revenue in accepting such a request. In view of the above, we hold that the CIT(A) was not justified in holding that the assessee has c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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