TMI Blog1998 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the provisions of s. 249(4) no appeal under Chapter XX is maintainable unless and until the tax on the admitted returned income is paid by any assessee and since the assessee has not paid the admitted tax on the returned income, the appeal before this Tribunal in terms of s. 253(1)(b) is not maintainable and since the appeal is not maintainable, submitted the Senior Departmental Representative, this Tribunal does not possess power or jurisdiction to entertain any stay petition in terms of r. 35A of ITAT Rules, 1963 and therefore, no orders can be passed either way on the stay petition. This was put to the assessee s counsel, K. Ravi, Chartered Accountant, who submitted that the provisions of s. 249(4) of the IT Act are only applicable in relation to appeals before the CIT(A) or Dy. CIT(A) and not in relation to any appeals which are filed before this Tribunal under s. 253 of the IT Act, 1961. It was fairly conceded by the assessee s authorised representative, K. Ravi that the assessee did not pay the admitted tax of Rs. 9,52,460 on the returned undisclosed income of Rs. 18,04,100. However, Ravi sought time for examining the legal position for making further submissions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat too in respect of those assessees/cases where searches have been conducted after 30th June, 1995, and before the 1st Jan., 1997. Under the provisions of Chapter XIV-B of the Act, submitted Ravi that separate block period assessments have been envisaged for computing the undisclosed income on the basis of books of accounts, documents and other materials found and seized during the course of search operations under ss. 132 and 132A of the Act. What is computed under the Chapter XIV-B is the undisclosed income earned by any assessee and it is for this reason that the legislature has not provided about non-maintainability of any appeal before this Tribunal upon failure to pay admitted tax on the undisclosed "returned" income. Appeals before this Tribunal as provided in s. 253(1)(b) of the Act are pursuant to the orders which may be passed by the AO under s. 158BC or under s. 158BD provided in Chapter XIV-B of the Act and the legislature has not imposed any condition that the appeal before this Tribunal under s. 253(1)(b) will not lie unless and until the tax @ 60 per cent on the admitted undisclosed income is paid. Had the legislature intended for entertaining an appeal after the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal challenging the block period assessment order passed under s. 158BC or 158BD of the Act. Arguing further, Ravi assisted by Quadir Hussain, submitted that the provisions of s. 158BC(a) does not contain any mandate or command for payment of tax on the undisclosed income like the one contained in the provisions of s. 140A of the Act. It was vehemently pleaded by the assessee s counsel that the appeal was maintainable in spite of non-payment of the admitted tax on the returned undisclosed income of the block period by the assessee in terms of s. 253(1)(b) and the provisions of s. 249(4) were not applicable in relation to the appeals before this Tribunal but were only applicable in relation to the appeals filed before the first appellate authorities mentioned in s. 246 of the Act. 6. Countering the arguments put forth by Ravi, Chartered Accountant and Quadir Hussain, Advocate, J. Suresh, Senior Departmental Representative submitted that the provisions of s. 249(4) are applicable even in relation to appeals which are to be presented and filed before this Tribunal under s. 253(1)(b) of the Act. In order to convince us, our attention was drawn to the provisions of sub-s. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of s. 249(4) were applicable and this Tribunal should not admit the appeal unless and until the tax has been paid on the returned undisclosed income by the assessee. Since there has been deliberate and blatant failure in paying the admitted tax on the returned income, according to Suresh, this Tribunal should not entertain and admit the appeal and dismiss it in limine and vacate the interim stay granted on 31st March, 1998. 7. On enquiry from us, the assessee s counsel Ravi submitted that the assessee had no funds or means to raise funds at the time of the filing of return of the undisclosed income of the block period in statutory Form No. 2B as the assessee was in jail till May, 1997, from 29th Dec., 1996, under the alleged offences and violations committed as per the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. It is for this reason, Ravi submitted that there was failure in making payment of the admitted tax on the returned undisclosed income and since this constituted a reasonable cause this Tribunal may take cognizance of this fact and admit the appeal assuming but not admitting that the provisions of s. 249(4) are also applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m any appellate authority has to comply with the conditions or requirements for admission and for consideration of an appeal, unless the appellate authority is invested and authorised with the power to relax, exempt, or waive the conditions and requirements imposed by the statute for preferring an appeal. 11. According to Suresh the Senior Departmental Representative, the provisions of s. 249(4) are attracted in this case as the assessee admittedly did not pay the tax due and payable on the income admitted and disclosed in the prescribed statutory return in Form No. 2B. If the argument of the learned Senior Departmental Representative is correct that the appeal filed by the assessee under s. 253(1)(b) is not maintainable because of the operation of s. 249(4), then we think that appellant-assessee is out of this Tribunal without getting any relief upon adjudication as the appeal becomes otiose and not maintainable being hit by the mandatory provisions of s. 249(4) of the Act, owing to non-payment of tax on returned income at the time of filing of this appeal. Now, therefore, the short but interesting question is whether the provisions of s. 249(4) operate and apply to an appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 249(4), in our view, are therefore, substantive provisions mandating any assessee-appellant to fulfil and comply with the requirements and conditions laid down in sub-s. (4) of s. 249 if his appeal has to be admitted for consideration by the appellate authorities mentioned in Chapter XX of the IT Act, 1961. In saying so, we rely upon various decisions of the Hon ble Supreme Court rendered in the below given cases: (1) Hoosein Kasam Dada (India) Ltd. vs. State of MP (1953) 4 STC 114 (SC); (2) Collector of Customs vs. A.S. Bava, AIR 1968 SC 18; and (3) Mohd. Akhalaq Ahmed vs. State of AP (1969) 23 STC 204 (AP). 14.1. It follows therefore, that, in order to get an appeal admitted by the appellate authorities prescribed in Chapter XX of IT Act, 1961, the assessee must comply with the mandatory requirements of the provisions of main sub-s. (4) of s. 249 wherever it has application as to the payment of the tax on the admitted returned income, etc. before the expiry of the period of limitation for filing the appeal. On failure, the Supreme Court in the case of Navinchandra Chhotelal vs. Central Board of Excise Customs AIR 1971 SC 2280 has held that the appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of only one meaning then no question of construction of a statute arises, for the act speaks for itself. 19. If we are to add the letter or alphabet "A" after the word Chapter XX in s. 249(4) as submitted by the assessee s authorised representative, Ravi, then, we will be simply rewriting the said provision, which is not permissible, as it will amount to legislating or tinkering with the mandate and command of the legislature. It is a settled law that nothing should be added, substituted or substracted from any provision contained in a statute in the guise of rule of interpretation by any Court or Tribunal. 20. Where, therefore, the "language" employed in a statute is clear and there is no ambiguity, then the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. The Courts have cautioned that a construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here. Reference may be made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made or allowed in any section (except s. 80M) included in this Chapter under the heading "See deduction in respect of certain incomes). Similarly, reference can also be made to s. 80HHB(5), s. 58(ii) and (iii), s. 115BBA(ii)(b). These few sections which we have quoted buttress our view that non-user of the letters A or B after the word Chapter in sub-s. (4) of s. 249 clearly brings out the intention of the legislature that it never wanted that the provision relating to payment of tax on admitted returned income should only be made applicable to appeals being filed before the Dy. CIT(A) or the CIT(A). We are of the considered view that the legislature deliberately wanted and intended that the condition of payment of tax on the admitted returned income should also be applied in relation to appeals which are required to be filed and admitted before this Tribunal in accordance with the provisions of s. 253 of the Act. We patently see no quarrel or ambiguity in relation to the employment of the word Chapter in sub-s. (4) of s. 249 of the Act, for applicability in relation to appeals for admission by this Tribunal. 22. We wanted to exercise the discretion like the first appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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