TMI Blog2023 (6) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed under section 250 of the Act which is an order in appeal passed by the CIT(A) on merits after entertaining the appeal. However, no appeal is provided against order of the CIT(A) declining to entertain appeal as defective or one not maintainable on account of non-payment of tax during filing of return - Assessee had never explained this issue or not made any objections related to this ground of revenue in the written submission. Issue related claim of section 32(1)(iia) for additional depreciation is entirely factual issue. But the appeal order itself caused not maintainable for violation of section 249(4) for non-payment of the admitted tax. So, the other grounds are kept open before the ld. CIT(A) - We remit back the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be held as valid return. (iii) The CIT(A) failed to appreciate that the provisions of Section 139(9) of the Act afforded an opportunity to the assessee to rectify specific defect in the return of income but not to file a revised return of income with some additional claim of deduction. (iv) The CIT(A) failed to appreciate that the assessee could not travel outside provisions of Section 139(9) and clause (a) to (f) of the Explanation to said provision and substitute the return originally filed. (v) The CIT(A) erred in admitting appeal of the assessee in violation of provisions of Section 249(4) of the Act without appreciating that the assessee failed to pay the tax due on the income returned by it at the time of filing of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s processed and considered as defective by the CPC. The notice was issued u/s 139(9) to assessee on dated 20.04.2015. The assessee filed return u/s 139(9) on dated 27.05.2016 and claimed the additional depreciation, which was not calculated in the original return, filed U/s 139(1). The assessment was completed u/s 143(3) on dated 27.05.2016. The assessee claimed that before completion of the assessment the claim was made for the additional depreciation before the assessing authority. The ld. AO had not allowed the relief of additional depreciation u/s 32(1) in assessment order, passed U/s 143(3) of the Act. The assessee considered it as mistake apparent from the record during passing the assessment order. Considering this, the assessee file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the assessee the ground of the revenue is not rebutted, related non-payment of admitted tax. Violation of section 249(4),both the appeals are not maintainable. 7. We heard the submission of the ld. DR and considered the documents available in the record. The particular legal issue was taken by the ld. DR in both the grounds of appeal filed before us. Without payment of the due tax during filing of return, the appeal before the ld. CIT(A)is caused the violation of section 249(4) and the appeal order U/s 250 is caused nullity which will be not maintainable before the bench. The Tribunal is without jurisdiction if the first appeal is not maintainable on account of non-payment of admitted tax. In terms of section 249(4)( a ) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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