TMI Blog2011 (1) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. The Commissioner of Income-tax (Appeals) held the three appeals as non-maintainable for violation of the provisions of section 249(4) of the Act. As per the Commissioner of Income-tax (Appeals), as on the date of filing of the appeals, no taxes were paid on the total incomes returned for the three captioned assessment years and, therefore, the appeals were non-maintainable in terms of section 249(4) of the Act. 2. Before us, the learned Counsel for the assessee vehemently argued that the Commissioner of Income-tax (Appeals) has erred on facts and in law in dismissing the appeals filed by the assessee as not maintainable under section 249(4) of the Act without appreciating that all the taxes due were actually paid by the assessee bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got removed before the hearing of appeals by the Commissioner of Income-tax (Appeals). 3. On the other hand, the learned Departmental representative has defended the action of the Commissioner of Income-tax (Appeals) by pointing out that the payment of taxes due on the income returned by the assessee before filing of an appeal against the assessment order, is a condition precedent and non-compliance of the same would render the appeal as non-maintainable. In this regard, reference was made to the judgment of the Hon ble Madras High Court in the case of S. Alagarswamy v ITO296 ITR 43 (Mad). 4. We have considered the rival submissions carefully. Section 249(4) of the Act prescribes that no appeal shall be admitted by the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the payment of prescribed tax ante filing of first appeal is only directory and not mandatory. In other words, according to the co-ordinate Bench whereas the payment of prescribed tax is mandatory but the requirement of section 249(4) of paying of such tax before filing of appeal is only directory. In the case of Bhumiraj Constructions (supra), the assessee paid the taxes on returned income after the disposal of appeal by the Commissioner of Income-tax (Appeals). Under these circumstances also, the Tribunal held that the defect in appeal due to non-compliance of a directory requirement of paying such tax before filing of the appeal stood removed and, therefore, the first appellate authority ought to have revived such an appeal. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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