TMI Blog2001 (11) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... clear and before filing the appeal assessee is supposed to pay tax on returned income as per cl. (a) of sub-s. (4) of s. 249. He further contended that even the proviso to sub-s. (4) of s. 249 give the power to Tribunal to exempt the assessee from payment of taxes only against cl. (b) of sub-s. (4) i.e., where no return has been filed by the assessee and he should have paid amount equal to amount of advance tax which was payable by him. He further submitted that provisions of s. 249(4) though inserted in Part A of Chapter XX but were equally applicable to appeals filed before the Tribunal. He also relied on the decision of V. Bhaskaran vs. Asstt. CIT (1998) 62 TTJ (Chennai) 698 and CIT vs. Filmistan Ltd. (1961) 42 ITR 163 (SC). 2. According to learned senior Departmental Representative the appeals are further incompetent and void ab initio because assessee cannot be said to have been aggrieved from the orders against which the appeals have been filed. In this regard, he relied, on following cases: (i) Jivatlal Purtashi vs. CIT (1967) 65 ITR 261 (Bom); (ii) M.M. Annaih vs. CIT (1970) 76 ITR 582 (Mad); (iii) Rameshchandra Co. vs. CIT (1987) 168 ITR 375 (Bom); (iv) Sterli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India is a special jurisdiction conferred on the High Court to do justice and it cannot be allowed to be a tool for encouraging a fraud on public revenue. In the present case, the round about turn taken by the petitioner without any genuine grievance was solely to harm the public revenue and to gain an undeserved advantage and the High Court cannot extend a helping hand to such attempt." 5. He narrated the facts in brief that a search operation was conducted at the premises of the assessee and when the assessee was cornered with evidence and was pushed back to the wall, he came out with a surrender of about Rs. 94.50 lakhs after discussions. The surrender was confirmed by the group through its letter dt. 20th Nov., 1996, to the CIT, Bhopal. On the basis of this surrender, assessments were finalised. In view of this surrender, returns in four cases, namely, (1) Malwa Texturising (P) Ltd., (2) Indore Texturising (India) (P) Ltd., (3) Rajratan Leasing and Finance Co. Ltd. and (4) Rita Trading and Marketing Ltd., were also revised by the assessee-group. Despite the surrender and revision of returns, taxes were not paid and instead appeals were filed which are void ab inito and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and now only a formal order is required. In view of this position of law, the preliminary objections raised by the learned Departmental Representative are only academic and will not alter the situation even if the same are decided by the Tribunal. In this regard, he also relied on the decision of Rajasthan High Court in CIT vs. Fateh Dangi (2001) 166 CTR (Raj) 275 : (2001) 118 Taxman 628 (Raj) where the same view has been taken by the Court. 7. Learned authorised representative submitted that though preliminary objections are not legally maintainable, still he would like to reply to each argument of the learned Departmental Representative. First of all, contention that s. 249(4) is also applicable to appeals filed before the Tribunal is not correct. He submitted that only authority available on the interpretation of this section is the decision quoted by learned Departmental Representative in case of V. Bhaskaran vs. Asstt. CIT is not correct interpretation and submitted that same requires reconsideration by the Tribunal. He submitted that Chapter XX of the Act which deals with appeals and revisions has five sections, out of which Part A deals with appeals before Dy. CIT(A) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot take it out of s. 246(1)(a) since there is no provision in the IT Act, 1961, corresponding to s. 96(3) of CPC 1908. In this regard, he relied on Chhatmall Agrawal vs. CIT (1979) 8 CTR (P H) 368 : (1979) 116 ITR 694 (P H), Gauri Sahai Ghisa Ram vs. CIT (1979) 120 ITR 338 (All). He contended that assessee s group did not file any revised return except in two cases. According to him, no agreement was reached between assessee and Department and whatever agreement is being mentioned by the learned Departmental Representative was made under pressure and cannot be relied for holding that assessee is not aggrieved party. In any case, Hon ble Punjab and Haryana High Court in Chhatmall Agrawal vs. CIT has held that assessment order made by consent of the assessee is also appealable. He also referred to decision of Supreme Court in CIT vs. V.MR.P. Firm (1965) 56 ITR 67 (SC) in which Supreme Court has held that if a particular income is not taxable under the Act, it cannot be taxed on the basis of doctrine of estoppel. 9. He further submitted that it is apparent from the proceedings that during search assessees statements were recorded under duress and the proceedings also continued in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applied for filing of appeals before the Tribunal. We have also gone through the decision of Chennai Bench of the Tribunal in case of V. Bhaskaran, wherein the issue has been decided in favour of the Revenue. The Chennai Bench has laid emphasis on the word Chapter in sub-s. (4) of s. 249 and has held that this provision is applicable to appeals before the Tribunal also because what legislature intended was to compel the assessee to pay admitted tax as per returns. Here we would like to point out that before the introduction of Chapter XIV-B w.e.f. 1st July, 1995, there was no provision for filing first appeals directly to the Tribunal. When Chapter XIV-B was introduced, corresponding cl. (b) was also inserted in s. 253 by which first appeal against the orders under s. 158BC was required to be filed directly with the Tribunal. It seems that when these amendments were made, corresponding provision of s. 249(4) was omitted to be inserted in Part-B of Chapter XX. We feel that it is not the duty of Courts to fill up omissions. Other view could be that legislature intentionally did not insert provision equivalent to s. 249(4) in Part-B of the Chapter XX. Therefore, with due resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock amounted only to 117 bags. When confronted with this information, one of the partners of the firm appeared before the ITO and expressed in writing the assessee s inability to reconcile the discrepancy and asked the ITO that the amount be added to the income. The Court observed that having regard to the statement made by the partner of the assessee, there was nothing either improper or illegal in the order of ITO having regard to the addition while the statement stood, the assessee could not have grievance in that behalf and was not entitled to appeal thereagainst. 11.4. In Sterling Machine Tools vs. CIT the assessee had declared cost of centering machines at Rs. 9,434 per machine. The ITO had the report of Vigilance Bureau and a board of experts in respect of cost of manufacturing machines which according to them after deducting 25 per cent profit for the trader came to Rs. 7,331 per machine. The assessee was confronted with this report, upon which a partner of the firm sent a letter stating that although the cost of machine was much more than calculated by the board of experts, its income may be worked out on the basis of experts report. On these facts, the Hon ble Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order because it was passed on concession made by the assessee could not be accepted because no such objection was taken before the AAC or Tribunal. Similarly, the facts in CIT vs. Hyderabad Secunderabad Food Grains Association Ltd. are altogether different. 13. From this analysis, it is clear that most of the High Courts have taken a view that once assessee gives his consent on a particular assessment, the assessee loses the right to appeal. 14. As far as the contention regarding assessee being under pressure and duress is concerned, we do not agree with learned authorised representative. We have perused the letter dt. 20th Nov., 1996, which was filed on behalf of the assessee before CIT, Bhopal. This letter runs into three pages and contains the details regarding issues being investigated by the Department and difficulties being faced by the assessee in procuring the required details. The concluding para of the letter runs as under: "In view of the above facts and complexities specially the circumstances prevailing at present involved i.e., complete closure of the new industrial undertaking, namely, M/s Rajratan Synthetics Ltd. this surrender is being made to av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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