TMI Blog2015 (3) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... fter he shall pass an appropriate order in accordance with law. - ITA Nos. 316 to 320/PNJ/2014 - - - Dated:- 24-3-2015 - P. K. Bansal (Accountant Member) And D. T. Garasia (Judicial Member) For the Assessee : V. Srinivasan - CA For the Department : Manjunath I. Pujar - D.R. ORDER D. T. Garasia (Judicial Member) These appeals by the same assessee against the common order of ld. CIT (A)-VI, Bangalore dated 28/02/2014 for the A.Ys. 2005-06, 2007-08, 2008-09, 2009-10 2011-12. Since, the common issue involved and the appeals were heard together, so these are being disposed of by this consolidated order. 2. The Registry has pointed out that there is a delay of 76 days in filing all these appeals. Assessee has filed an application for condonation of delay and submitted before us that assessee is carrying on the business of dealing in Iron Ore, which has been banned since 2012 onwards and thereafter, he was not carrying the business. Learned AR submitted that assessee has instituted the appeals before the learned CIT(A)-VI, Bangalore for all the A.Ys. 2005-06, 2007-08, 2008-09, 2009-10 2011-12, which were dismissed on the ground that the assessee has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the court s discretion should be exercised in favour of the hearing and not to shut out hearing. The Supreme Court in the case of WEST BENGAL v. ADMINISTRATOR, HOWRAH MUNICIPALITIES [1972] AIR 1972 SC 749 has held that if a party had acted in a particular manner on wrong advice given by his local advisor he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under section 5 of the Limitation Act, 1963. It also held that the words sufficient cause should receive a liberal construction so as to advance substantial justice and no negligence or inaction for want of bona fides is imputable to a party. We, accordingly, condone the delay and admitted for hearing. 5. For the sake of convenience, facts are taken from I.T.A.No. 316/PNJ/2014. The assessee has raised the following grounds:- 1. The orders of the authorities below in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] has erred in dismissing the appeal as nonmaintainable u/s.249[4][a] of the Act, when in her opinion it was not to be admitted and thus not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately the tax taking a technical and pedantic view in isolation for the assessment year under appeal and therefore, the learned CIT[A] ought to have held that the taxes on the reported income have been duly paid on the overall consideration of all the assessment years for which the appeals have been filed and ought to have disposed off the same on merits and is not justified in dismissing them as non-maintainable. 3. Without prejudice to the above, the order of assessment passed by the learned A.O. u/s.143[3] rws 153A of the Act, is bad in law for want of requisite jurisdiction and is liable to be cancelled. 4. The search in the case of the appellant on 22/02/2011 was illegal as there was no search initiated against him and the search initiated and warrant issued was in connection with search initiated against the defunct entity M.A.ZAHID AND M.A.NAMEEM, which was legally not in existence and further, the search conducted is ultra vires the provisions of section 132[1][a], [b] and [c] of the Act, and therefore illegal and having regard to the parity of the ratio of the decision of the Hon'ble Supreme Court in the case of AJITH JAIN reported in 260 ITR 80 [SC] and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, which is to be charged after giving credit to taxes paid in the original assessment for the period commencing from the expiry of time under the notice till the date of filing the return of income in the case of interest u/s.234A[3] and in the case of 234B[c] on the excess amount payable on the sum determined from the date of earlier assessment till the date of reassessment. 10. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 6. Short facts of the case are that a search was carried out on 22/02/2011 in the group cases of the assessee. Assessee was provided opportunity to file return. The assessment was completed u/s. 143(3) r.w.s. 153A of the Act. The assessee has filed the appeal before the Ld. CIT(A) and the Ld. CIT(A) has called for the information from the Assessing Officer. The Assessing Officer has informed that the assessee has not paid due taxes on the return of income. On this basis, Ld. CIT(A) has dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. We have heard rival contentions of both the parties. It is quite clear from perusal of Section 249(4)(a) of the Act that unless assessee pays the tax due on the income returned by him, the CIT(A) is not vested with any power to entertain the appeal. In the present case, at the time of filing of appeal before the CIT(A), assessee had not paid the tax due on the income returned by him and thus no fault can be found with the order of the CIT(A) in dismissing the appeal of the assessee in-limine. However, the position sought to be canvassed by the assessee is that after the order of the CIT(A), he has paid the requisite tax due on the income returned by him and therefore the CIT(A) ought to entertain and admit assessee s appeal for adjudication on merits. The Revenue has opposed the said prayer on the ground that payment of admitted tax subsequent to the order of the CIT(A) dismissing the appeal, cannot be a ground for setting-aside the order of the CIT(A). On this aspect, in our view, the judgement of the Hon ble Karnataka High Court in the case of K. Satish Kumar Singh (supra) clearly covers the controversy. As per the Hon ble High Court, after the dismissal of the appeal by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
