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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI RAM LAL NEGI, JM
O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against order of the ld. Commissioner of Income Tax (Appeals) – 16, Mumbai dated 29.02.2016 and pertains to assessment year 2011-12.
The grounds of appeal read as under: (1) In dismissing the Appellants appeal at the "thresh hold", due to non- payment of admitted taxes, by the appellant.
Lok Housing and Constructions Ltd. vs. DCIT (OSD) (2) In dismissing the Appeal, without hearing and adjudicating appeal on the merits of the case, committed violation the principles of natural justice and equity. (3) Failed to appreciate without hearing, the reasons and circumstances of severe financial crisis and liquidity crunch, the appellant was passing through and despite the appellant best of the efforts and willingness, could not pay admitted tax. (4) By not adjudicating appellants appeal, grave injustice has been inflicted, because of huge tax liability of Rs.1,23,57,710/- which is much greater liability as compared to the admitted tax of Rs.23,12,397/-. (5) The appellant, plead that file may be restored back to the CIT (A)-16, for adjudicating appeal on merit.
Brief facts of the case are that the assessee company filed its return of income for assessment year 2011-12 on 28.09.2011 declaring total income of Rs.3,85,34,169/-.
The case was selected for scrutiny and an order u/s. 143(3) was completed on 29.03.2014 determining the total income of the assessee at Rs.7,01,00,590/- as per normal provisions and Rs.1,36,98,549/- u/s. 115JB of the Act after making addition/disallowance u/s. 41(1) of Rs.30,29,030/- u/s. 14A r.w.r. 8D Rs.9,98,104/-, u/s. 36(1)(iii) Rs.1,08,8,520/- and difference in sale and market value of flats sold Rs.1,69,90,768/-.
Upon the assessee's appeal the ld. Commissioner of Income Tax (Appeals) dismissed the appeal on account of non-maintainability of the appeal on account of non-payment of admitted tax. In this regard, the ld. Commissioner of Income Tax (Appeals) held as under:
5. From perusal of direct tax challan report generated by the A.O. from the system it is evident that appellant has not paid taxes on the returned income. Therefore, provision of Section 249(4)(a) will be applicable in appellant’s case. The provision are reproduced as under:
Lok Housing and Constructions Ltd. vs. DCIT (OSD) (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; Since the appellant had not paid the taxes due on the returned income, therefore, appeal cannot be admitted. Hence, dismissed.
Against the above order, the assessee is in appeal before us.
We have heard both the counsel and perused the records. We find that with regard to appeal filed before the ld. Commissioner of Income Tax (Appeals) provision of section 249(4) of the Act provides as under:
Form of appeal and limitation. 249. (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 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.
From the mandate of law as above it is evident that appeal before the ld. Commissioner of Income Tax (Appeals) is not maintainable unless the assessee has paid the admitted tax. No exception to this provision of law is carved out in the statute. Accordingly, in our considered opinion, the ld. Commissioner of Income Tax (Appeals) has correctly appreciated the law and there is no infirmity in his order.
Accordingly, we uphold the order of the ld. Commissioner of Income Tax (Appeals).