TMI Blog2003 (9) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... er to understand the factual background in a better way, it is worth to take note of the following details compiled by the assessee in paper books of respective appeals : Shri J.K. Chaturvedi Asst. yr. 1991-92 Return under s. 148 was filed on 29th March, 1995 Rs. Total income as per return under s. 148 17,45,940 Tax payable as per return 8,68,830 Interest 234B 8,34,076 Interest 234C 27,367 Total tax interest payable 17,30,273 Orders passed Under section Date of order Assessed income (Rs.) Demand raised (Rs.) Tax Interest Total 143(1)(a) 31-3-1995 17,45,940 9,41,438 9,71,858 18,54,896 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand raised (Rs.) Tax Interest Total 143(1)(a) 27-10-1995 18,87,168 10,03,517 5,25,079 15,28,596 154 18-9-1995 18,87,168 9,04,789 4,63,810 13,68,599 144 r/w s. 147 21-1-1997 30,91,325 14,74,516 22,68,435 37,42,951 Appeal is filed against the assessment order dt. 21st Jan., 1997 (before the Tribunal) Details of taxes paid : Regular tax paid to TRO Rs. 30-12-1997 3,00,000 30-11-1999 25,000 14-12-1999 25,000 6-1-2000 1,00,000 31-1-2000 74,955 31-1-2000 35,000 Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-3-1998 1,00,000 11-2-1998 2,05,000 16-3-1998 2,25,000 24-3-1998 2,09,892 24-3-1998 2,00,000 31-3-1998 1,00,000 31-3-1998 1,00,000 22,05,827 Appeal before the CIT(A) was filed on 12th April, 1996 4. Thus, from the details extracted above, it is explicit clear that assessee has to revise his returns consequent to the disclosure made during the search and this has given a substantial rise on tax liability to the assessee. 5. The assessment under s. 143(3) in asst. yr. 1993-94 and under s. 144 r/w s. 147 were framed in asst. yrs. 1991-92 and 1992-93, thereby learned AO made number of additions. Since the issue regarding addition on quantum has not been agitated before us, thus, for the time being it is necessary to divulge those details. 6. Aggrieved with the assessments, the assessee carried the matter in appeals before the CIT(A). The learned first appellate authority has dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll has been used in sub-s. (4) of s. 249, which contemplates that no appeal under this chapter can be entertained upto and until compliance of s. 249(4) is made. He contended that for the learned first appellate authority there is no option except to dismiss the appeals in limine as the assessee had not paid the agreed taxes. Therefore, these appeals also deserve to be dismissed. 9. We have duly considered the rival contentions. From the perusal of record and on consideration of respective arguments, following points have emerged out for our adjudication : (1) Whether the Tribunal has powers under s. 254(1) to give a finding that an appeal filed in violation of s. 249(4) would be termed as defective one and the moment the defect is cured by making payment of agreed tax, the appeal can be decided on merit subject to limitation provided in s. 249(2) and its condonation thereof as per s. 249(3). (2) Whether non-availability of funds for making payment of agreed taxes with the assessee could be considered as a reasonable cause for filing defective appeals in violation of s. 249(4) of the Act. (3) Whether sufficient reason exists for curing this defect after expiry of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to 1961 Act, At p. 237, the Hon'ble Supreme Court made following observation : The word 'thereof', of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words pass such orders as the Tribunal thinks fit include all the powers (except possibly the power of enhancement) which are conferred upon the AAC by s. 31 of the Act. Consequently, the Tribunal has authority under this section to direct the AAC or the ITO to hold a further enquiry and dispose of the case on the basis of such enquiry. 12. Then again this expression fell for consideration before the Hon'ble Supreme Court in the case of CIT vs. Assam Travels Shipping Service (1993) 199 ITR 1(SC). In this case, assessee filed the return late for asst. yrs. 1963-64 and 1964-65. Thus, violated s. 271(1)(a)(2) of the Act. The learned AO levied the penalty. However, while calculating the penalty, he worked out the amount at a very lower figure. He levied the penalty at ₹ 6,494 and ₹ 70,118 for asst. yrs. 1963-64 and 1964-65 respectively as against the amount of ₹ 65,700 and ₹ 93,564. The assessee challenged this levy of penalty before the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient reasons for curing such defects after expiry of limitation, it would be in the realm of Tribunal's discretion to restore such matters to the file of the CIT(A) for deciding the controversy on merit because sub-s. (1) of s. 254 provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice. 14. On personal of record, we find that the assessee has discharged the huge tax liability of more than ₹ 75 lacs in instalments. Thus, it would be totally unfair for not providing an opportunity to him for disputing the additions made by the AO on merit. The Hon'ble Full Bench of Delhi High Court in J.T. (India) Exports Anr. vs. Union of India Anr. (2002) 177 CTR (Del)(FB) 108: (2003) 262 ITR 269(Del)(FB), while elaborating the principle of natural justice along with the legal justice, has observed as under : Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the judgment that in such cases the right course would be restoring the appeal before the CIT(A). Before the Hon'ble Orissa High Court, the issue relates to asst. yrs. 1974-75 and 1975-76. The learned AO determined the income of assessee at ₹ 17,500 and ₹ 30,000. Against this order, the appeals were filed before the first appellate authority on 29th Oct., 1975. By then s. 249 has been amended by incorporating sub-s. (4) w.e.f. 1st Oct., 1975. The learned first appellate authority dismissed the appeal of the assessee in limine on the ground that assessee failed to pay the agreed tax at the time of filing of the appeal. During the pendency of appeal before the Tribunal, the assessee paid agreed tax on 15th June, 1976. The Tribunal set aside the order of the learned CIT(A) and restored the matter back to the file of first appellate authority. The Revenue has challenged the order of the Tribunal on the ground that decision given by the first appellate authority was not one under s. 250 of the Act and, therefore, no appeal would lie to the Tribunal and the Tribunal has no jurisdiction under s. 253 for setting aside the order of first appellate authority and directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Collector, Land Acquisition vs. Mst. Katiji Ors. (1987) 62 CTR (SC) 23: (1987) 167 ITR 471(SC) has observed that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. Thus, considering the hardship of the assessee, we are of the opinion that there exist sufficient reasons for not filing a valid effective appeal before the CIT(A). It is aptly said that facts should be viewed in a natural perspective having regard to the compulsion of circumstances of a case where it is possible to draw inferences from the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee it would be just and equitable to draw such inference in such a manner that would lead to equity and justice. Too hypertechnical or legalized approach should be avoided in looking at a provision which must be equitably interpreted and justly administered. Hence, taking into consideration the overall facts and circumstances of the case we are of the opinion that thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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