TMI Blog2015 (7) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ove observations of ld CIT(A). Admittedly, the assessee has furnished the return of income for the block period under consideration declaring 'undisclosed income' at ₹ 26,73,303/- as it is evident from the copy of return dated 11.5.2001 submitted before the Assessing officer. It appears that the assessee filed an application dated 9.5.2001 alongwith return of income stating that the cash and other valuables standing in her name and/or admitted as in the return may be adjusted against her admitted tax liability. However, there is no truth in the said application. It is observed that during the course of search no cash and other valuables were seized belonging to the assessee. It is apparent from the record that the assessee had failed to pay tax due on the income returned at the time of filing the return or even before filing of appeal or even at the time when appeal was heard by the ld CIT(A). Thus, as per the requirements of section 249(4)(a) of the Act, paying of tax due on income returned at the time of filing was not complied with by the assessee and, therefore, the ld CIT(A) has correctly refused to admit the appeal of the assessee as per the provisions of section 249(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made by the appellant in the names of her son Shri Dinesh Shankar Pegu and her husband Shri Ananda Chandra Pegu in fact belonged to such persons, and in assessing those as their respective 'undisclosed income'. 7. For that, on the facts and in the circumstances of the case, the ld CIT(A) has erred in law and in fact in not holding that the investments made by the appellant in the names of her son Shri Dinesh Shankar Pegu and her husband Shri Ananda Chandra Pegu had in fact been made by the appellant herself from out of her own 'undisclosed income' as shown by her in her return for the block period and in not passing appropriate consequential order or orders in that behalf. 8. For that, on the facts and in the circumstances of the case, the ld CIT(A) has erred in law and in fact in sustaining the assessment order passed by the ld AO wherein, the said assessing authority determined the 'undisclosed income' of the appellant at ₹ 14,35,652/- which is contrary to the materials on record, based on non-consideration of relevant materials and on consideration of the materials without property authority. 3. Briefly stated, the facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the appellant. In fact, provision u/s. 158BD was initiated in this case. Neither any assets belonging in the appellant had been seized nor there is any scope for application of seized assets u/s. 132B of the I.T. Act. The seizure made in any other person and assets belonging to other person could not have been adjusted with the tax due on the income returned by the appellant. The appellant had not paid any tax due on the income returned at the time of filing or before the filing of appeal or even at the time when appeal was in heard. Thus as the requirement of section 249(4) (a) of paying the tax due on the income returned at the time of filing of the appeal was not complied with by the appellant, the appeal presented by the appellant is not admitted as per section 249(4) of the IT. Act. 5. Being aggrieved by the order of the ld CIT(A), the assessee is in appeal before the Tribunal. 6. We have heard the rival submissions and have also perused the materials available on record. 7. Shri Uttam Kumar Barthakur, ld counsel for the assessee submitted that the tax on admitted 'undisclosed income' for the block period was ₹ 26,73,383/-, as it is evident from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seizure made the case of in any other person and assets belonging to other person could not have been adjusted with the tax due on the income returned by the assessee. Ld D.R. submitted that there is no force in the submissions made by ld counsel for the assessee because the application dated 9.5.2001 submitted by the assessee on 11.5.2001 is factually incorrect and misleading. He therefore, submitted that the admission of appeal before ld CIT(A) is subject to payment of tax due on the returned income and after considering the material aspect of the matter, the ld CIT(A) has come to the conclusion that the appeal is not maintainable and, therefore, did not admit the appeal as per the provisions of section 249(4) of the Act. He submitted that the assessee failed to comply with the mandatory requirement of section 249(4) of the Act and the order passed under section 249(4) of the Act is not appealable order before the Tribunal. According to ld D.R., under the Income tax Act, the order passed u/s.249(4) of the Act cannot be agitated by way of appeal before the Tribunal and the remedy lies somewhere else. He, therefore, submitted that the appeal may be dismissed. 9. Reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has correctly refused to admit the appeal of the assessee as per the provisions of section 249(4) of the Act. 11. In the case of CIT v. Manoj Kumar Beriwal [2009] 316 ITR 218 (Bom.), the Hon'ble Bombay High Court held that for the purpose of section 249(4) of the Act, the deposit of admitted tax is condition precedent for entertainment of appeal before the ld CIT(A. In the instant case, the view taken by the ld CIT(A) deserves to be confirmed keeping in view the judgment of Hon'ble Karnataka High Court in the case of D. Komalakshi (supra), wherein, the Hon'ble High Court held as under: 'After hearing, we have carefully perused the material on record. Both the appellants have filed the return after the search and seizure in terms of the material on record. The returns were considered by the Assessing Officer and thereafter, adverse orders were passed by him. When the same were challenged before the Appellate Commissioner, the Appellate Commissioner by a detailed order, has chosen to hold that the appeals filed by the assessees are not maintainable in terms of section 249(4) of the Act. When the same was challenged before the Tribunal, the Tribunal has accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of section 249(4) of the Act, the appeal cannot be admitted in the absence of tax on the admitted income. This very statement of the appellants before the authority would go with the mandatory requirement of section 249(4) of the Act. Under the facts of the case and in the given circumstances, we are satisfied that there exist no legal errors either in the order of the Commissioner or in the order of the Tribunal. The orders are therefore, accepted by us in the case on hand, particularly, in the light of the admitted facts in terms of the return and in terms of the submission as we see from the material on record. Under the circumstances, we hold that both the appeals are liable to be rejected by answering the questions of law against the assessees. ' 12. In our considered view, the decision of the Hon'ble High Court, referred to above, is squarely applicable to the facts of the present case. In the said case, the ld CIT(A) had rejected the appeals on the ground of maintainability in the light of section 249(4) of the Act and the Tribunal has upheld the order of ld CIT(A). The assessee preferred the appeal before the Hon'ble High Court and the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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