TMI Blog2000 (10) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... e a request for exemption from the provisions of section 249(4) with the plea that it was on account of financial difficulties after the construction of the hotel building that the assessee could not remit the tax on the admitted income. In the petition, it was also stated that the provisions of section 249(4) as on 16-8-1988 were applicable in his case as the notice under section 148 of the I.T. Act for the purpose of assessment for the assessment year 1987-88 had been issued on that date. The assessee's claim was that under the provisions existing prior to the amendment with effect from 1-4-1989 the Appellate Authority had the power to exempt the assessee from the operation of the provisions of sub-section (4) of section 249. The Commissioner (A) did not accept the assessee's contention. He was of the view that the material date was the date of filing of the appeal and that, that date falling after 1-4-1989, the assessee had no alternative but to remit the tax on the admitted income if he wanted the appeal to be admitted. The Commissioner (A), thus held that as the assessee had not paid the tax on the admitted income, the appeal could not be entertained. Aggrieved with the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal the assessee had paid the tax due on the income returned by him. In the present case, the assessee filed the return on 13-3-1989 admitting the total income of Rs. 4,07,460. Later he filed a revised return on 30-1-1990 showing total income of Rs. 5,35,960. The sum of Rs. 1 lakh paid by the assessee on 8-8-1988 was much below the tax due on the admitted income. Our attention was then drawn to amendment in sub-section (4) introduced by the Direct Tax Laws Amendment Act, with effect from 1-4-1989. Shri Narayanan submitted that under the amended provisions the power to exempt the assessee from the operation of the sub-section was available in a case falling under sub-clause (b) only, i.e., where no return had been filed by the assessee. In the present case, the assessee had filed the return and so the Appellate Authority had no power or discretion to exempt the assessee from the operation of section 249(4). It was contended that when the Commissioner (A) had no power under the statute to exempt the assessee from payment of tax or to admit an appeal in a case of non-payment of tax, the Tribunal could not give a direction to that effect. The learned Departmental Representative furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings in Courts even when such proceedings are under any special or local law, the assessee cannot resort to any of the provisions of the Limitation Act including section 5 for the purpose of invoking the jurisdiction of the Tribunal after the expiry of the period of limitation. The Appellate Tribunal being a creature under the I.T. Act it has to function within the powers conferred on it by the Act. We are inclined to agree with the learned Departmental Representative that the Tribunal cannot go beyond the provisions of the Act. 6. Section 249(4) imposes a condition prior to admission of an appeal by the CIT(A). It is provided in sub-section (4) that no appeal shall be admitted unless at the time of filing the appeal the assessee has paid the tax due on the income returned by him. If the assessee does not comply with the requirement of paying the tax before filing the appeal, it would not be correct to say that the Tribunal has the inherent power to relax the statutory requirement and direct the Appellate Authority to admit the appeal. In that case, in effect the Tribunal would be directing the Commissioner (A) to ignore the condition imposed by the statute. We do not agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M.P. [1989] STC 114, the Supreme Court held that the right of appeal from the decision of an Inferior Tribunal to a Superior Tribunal became vested in a party when the proceedings were first initiated in, and before a decision was given by the Inferior Court. In that case the Apex Court observed: "A pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. A provision which is calculated to deprive an assessee of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. For the purposes of the accrual of the right of the critical and relevant date is the date of initiation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en paid by the assessee. Tax was paid only subsequently. The Commissioner (A) rejected the contention of the Assessing Officer that the provisions of section 249(4) as amended with effect from 1-4-1989 under which the appellate authority had no power to condone the delay in payment of tax, were applicable. The Tribunal upheld the order of the Commissioner (A) admitting the appeal, in view of the provisions as existing prior to 1-4-1989 as the assessment proceedings had been initiated before that date. 8. In the light of the judicial pronouncements noted above we have to hold that for determining the accrual of the right of appeal, the relevant date is the date of initiation of the assessment proceedings. The Commissioner (A) is clearly in error in holding that the crucial date is the date of filing the appeal. In the present case admittedly the assessment proceedings were initiated with the issue of notice under section 148. That notice was issued on 16-8-1988 [vide para 1 of the order of the Commissioner (A)]. The assessee filed the return of income on 13-3-1989 admitting an income of Rs. 4,07,460. Thereafter a revised return was filed on 30-1-1990 admitting a total income of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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