TMI Blog2021 (7) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... or the said reason, the 2nd respondent, without adjudicating the matter on merits, has rejected the appeal as void ab initio, though by using the term as dismissed . Any appeal, which is not accompanied either by the requisite Court fee, or any other mandatory payment required to be made as per the provisions of the relevant Statute, cannot be considered as a validly presented appeal, and such appeal would be non-est in the eye of law. Once an appeal is considered as non-est in the eye of law, any order impugned in such appeal cannot be considered as subject of an appeal , as there is no ascertainment or adjudication of the issues raised in the appeal on its merits. As noted that Section 251(1)(a) of the Act stipulates that an appeal filed before the appellate authority to be considered as disposed, would require such order under challenge to be either confirmed, reduced, enhanced or annulled. It goes without saying that the disposal is by considering the merits of the matter. In the facts of the present case, the order passed by the 2nd respondent, in rejecting the appeal as void ab initio, cannot be considered as disposing the appeal by any of the above modes specified. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by the 2nd respondent, by order dt.09.07.2003, holding that the appeal filed was void ab initio and cannot be admitted, since the appellant had failed to pay the admitted tax due, as per the return of income filed voluntarily on 31.03.2003; and the 2nd respondent, thus, held that no adjudication on merits of the appeal, is warranted, having regard to the express provisions of Section 249(4)(a) of the Act. 4. Petitioner further contends that, upon the rejection of the appeal by the 2nd respondent (as cannot be admitted), the petitioner invoked the power of Revision conferred on the 1st respondent under Section 264 of the Act, and filed an application on 29.03.2004, seeking Revision of the assessment order dt. 31.03.2003 made by the 3rd respondent. In the said Revision preferred, the petitioner sought for reconsideration of the issue relating to proceeds from sale of agricultural land by the petitioner s father being subjected to Long Term Capital Gains, applying the provisions of Section 54-F of the Act. 5. The 1st respondent by order dt.30.09.2004, rejected the said Revision application filed by the petitioner. In the order, the 1st respondent stated the reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal , to oust or prevent the 1st respondent from exercising the power of Revision conferred on him under Section 264 of the Act? 10. Admittedly, in the facts of the present case, the appeal filed by the petitioner against the order of the 3rd respondent dt.31.03.2003, had been filed without payment of admitted tax due as per the return of income. Since, the admitted tax due is required to be paid for filing the appeal before the 2nd respondent for it to be entertained, and the appeal having been filed by the petitioner without making such payment, the said appeal, even if filed, cannot be considered as a validly presented appeal. It is for the said reason, the 2nd respondent, without adjudicating the matter on merits, has rejected the appeal as void ab initio, though by using the term as dismissed . 11. Any appeal, which is not accompanied either by the requisite Court fee, or any other mandatory payment required to be made as per the provisions of the relevant Statute, cannot be considered as a validly presented appeal, and such appeal would be non-est in the eye of law. Once an appeal is considered as non-est in the eye of law, any order impugned in such appeal cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R OF INCOME TAX (1978) 113 ITR 363 Mad., the Madras High Court, while construing Section 33A of the Indian Income Tax Act, 1922, which corresponds to Section 264 of the Act, expressed the view that an order is made the subject of an appeal within the meaning of Clause (c) of the first proviso to Sub-section (2) of Section 33A, only when it is the subject-matter of an effective appeal. The Madras High Court also held that if an appeal to the Appellate Tribunal under Section 33 is not admitted and is disposed of on the ground that it was filed after the prescribed time, the order cannot be said to be the subject of an appeal . 14. The Kerala High Court in C.C. JAYARAM V/s. CIT (1994) 207 ITR 662 Ker. also expressed a similar view and held that- There is no effective disposal of the petitioner s appeal either by the Commissioner of Income Tax (Appeals) or by the Income Tax Appellate Tribunal. In exhibit P-2, the Commissioner of Income Tax (Appeals) refused to entertain the appeal filed by the petitioner on the ground that the petitioner failed to pay the admitted tax and the said decision was confirmed by exhibit P-3 order of the Appellate Tribunal, so much so that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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