TMI Blog1979 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th March, 1978 the assessee applied to the ITO under s. 220(3) r/w s. 220(6) praying that the collection of the entire tax demanded be kept in abeyance as the assessee was preferring an appeal against the assessment. Such an appeal was actually filed on 7th April, 1978. On the assessee's request made on 27th March, 1978 the ITO directed that the undisputed demand of Rs. 13,118 should be paid immediately and that on the payment of the same the question of stay of the balance demand would be considered. He also forwarded the necessary challan therefor. This communication was received by the assessee on 5th July, 1978. The assessee compiled with the above direction of the ITO on 22nd July, 1978. The CIT (A) issued a show-cause notice to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee reached the assessee only on 5th July, 1978 and that the same was complied with by 22nd July, 1978. She pointed out that when the CIT (A) issued show-cause notice on 21st Sept., 1978. the admitted tax was already paid and, therefore, there is no legal impediment for the admission of the assessee's appeal. She referred us to the order of the Tribunal (Cuttack Bench) in the case of Jagan Prasad Madanlal vs. ITO(1) Asst. yr, 1975-76 reported in "All India Tax Tribunals Judgment's" and that of the Tribunal (Chandigarh Bench) in the case of Rattanchand Sood Co vs. ITO(2), asst. yr. 1969-70, in support of her stand. 4. On behalf of the Revenue, the learned departmental representative strongly supported the order of the CIT (A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax due on the income returned by him, or (b) Where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, on an application made by the appellant in this behalf, the AAC may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of this sub-section." A plain reading of the above provisions shows that unlike under the Indian IT Act, 1922, as per which no appeal would lie at all against the order of penalty under s. 46(1) of the said Act, under the 1961 Act an appeal shall lie but only the admission thereof is subject to the conditions specified therein viz, that the assessee should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sooner thereafter, i.e, 22nd July, 1978, assessee pointed out above. It is again common ground that the CIT (A) took up the appeal for hearing for the first time only on 29th Sept., 1978, It is thus clear on fact that even two months before the appeal was taken up for hearing by the CIT (A), the assessee had paid the demand of tax on the admitted income. The assessee's plea tat he bone fide believed that his application filed before the ITO well within the prescribed time for payment of the demand to tax under s. 220(3) would be considered favourably by the ITO has considerable force. In fact, it is not the case of the Revenue that any penalty was levied by the ITO under s. 221(1) of the IT Act, 1961 for the non-payment of the tax demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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