TMI Blog1995 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. After scrutiny of the various papers seized during the course of search and other relevant materials, the Assessing Officer completed the assessment under section 143(3) of the Act on 31-12-1991 at an income of Rs. 23,05,050 as against the returned income of Rs. 86,840. 3. The assessee appealed before the CIT(A), Surat. In the grounds of appeal the assessee objected to the various additions made by the Assessing Officer. Besides, the assessee objected to some observations made in the assessment order. The charging of interest under sections 139(8) and 217 was also disputed in appeal. Initiation of penalty proceedings under various sections was also disputed in appeal. The CIT(A) noted that as per the provisions of section 249(4)(a) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4)(a), the appeal under consideration cannot be admitted. It is also relevant to note that with effect from 1-4-1989, the CIT(A) does not have any power to condone the lapse of the non-payment of tax on the returned income. It is also relevant to note that the appeal under consideration has been filed on 3-2-1992, i.e. after 1-4-1989. It is relevant to note that the provision relating to section 249(4)(a) is not an idle and a dispensable formality. It is an imperative obligation. As already mentioned, with effect from 1-4-1989, the CIT(A) has not been given any power to condone the default or not complying with the provisions of section 249(4)(a). It may be mentioned that being the creature of the Income-tax Act, 1961, the CIT(A) has to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tax had remained unpaid, the same was paid soon thereafter and in any case much before the date of hearing of the appeal. The CIT(A) dismissed the appeal for non-payment of tax as per returned income on the date of filing of the appeal without nothing the decision of the Calcutta High Court in the case of CIT v. Bengal Card Board Industries Printers (P.) Ltd [1989] 176 ITR 193 which ruled in assessee's favour that :--- "Where, on the date of initiation of assessment proceedings, law permitted an appeal to be preferred without payment of admitted tax liability but subsequently if law is amended requiring deposit of entire amount of admitted liability before appeal in entertained, right of appeal in such a case should be governed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal, (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him ; or (b) where no return has been filed by the assessee ; the assessee has paid an amount equal to the amount of advance tax which was payable by him : Provided that, (in a case falling under clause (b) and) on an application made by the appellant in this behalf, the (Deputy Commissioner (Appeals)) (or as the case may be, the Commissioner (Appeals)) may, for any good and sufficient reason to be recorded in writing exempt him from the operation of the provisions of (that clause)." There is no dispute that the assessee had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (4) in section 249 requiring payment of undisputed tax before filing of the appeal had been inserted with effect from 1-10-1975. Undisputed tax was not paid before filing of appeal. On these facts the Calcutta High Court held that an appeal is a continuation of the original proceedings and right to prefer an appeal accrued when notice under section 143(2) was issued or in any event when assessment was made on 31-7-1975 prior to 1-10-1975 when the amendment came into force. Accordingly the Hon'ble Calcutta High Court held that law as stood prior to 1-10-1975 governed the case and appeal was maintainable. In the case before us the return of income was filed on 21-3-1991 and the assessment proceedings started with the issue of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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