SHREE GAJANANA INDUSTRIES (INDIA) PRIVATE LIMITED ,MUMBAI vs. INCOME TAX OFFICER-11(2)(2), MUMBAI

For this purpose, reliance was placed by learned AR on the decision of the Co-ordinate Bench in case of Karim Nawaz Alladin in & 184/Hyd/2013 dated 20/05/2016 wherein Tribunal held as under:- 8. We have carefully considered the rival submissions. Factually speaking, it is not disputed by the Revenue that assessee has paid the taxes due on the income returned after filing of appeal before the CIT(A) but before its determination by the CIT(A). In this factual background, the CIT(A) has interpreted the condition prescribed in section 249(4) of the Act, regarding payment of tax due on the returned income prior to the filing of appeal, as a mandatory condition. Therefore, he held the appeal as un-admitted and dismissed the same in-limine. However, the Mumbai Bench of the Tribunal in the case of Bhumiraj Construction (supra) has in extenso considered the objective behind the insertion of section 249(4) of the Act, as it stood for the assessment year under consideration, and held that whereas the payment of tax due on the income returned is a mandatory condition but the requirement of paying such tax before filing of the appeal is essentially directory in nature. According to the Tribunal, where such defect in appeal, being non-payment of tax prior to filing of appeal, has been removed then the earlier filed defective appeal becomes a valid appeal. The following discussion in the order of the Tribunal in the case of Bhumiraj Construction (supra) is worthy of notice:- 4. At this stage, it will be fruitful to have a look at the provisions of section 249(4), under which section the impugned order has been passed. It runs as under- "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 6596/Mum/2017 Shree Gajanana Industries (India) Pvt. Ltd., (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."

5. On going through the prescription of proviso to sub-section (4) it transpires that the CIT(A) has been empowered to grant exemption from the payment of tax equal to the amount of advance tax which was payable by the assessee in a situation where no return is filed by the assessee. It implies that where the assessee did not file any return for the relevant year and still the assessment was made, the assessee can file first appeal even without the payment of tax provided he satisfies the CIT(A) for the reasons of non-payment of tax. The power of the first appellate authority as per the directive of proviso is not to accept the delayed payment of such tax, but to exempt the payment of tax altogether. The operation of proviso is restricted only to clause (b) and is not applicable to clause (a) which deals with a situation in which return was filed by the assessee. Thus in such a situation where the return was originally filed by the assessee, the CIT(A) has no power to grant exemption from the making of payment of tax due on the income returned. The requirement of payment of tax in a case covered under clause (a) is to be examined at the time of admission of first appeal.

At this juncture, it will be apposite to note the distinction between a mandatory and directory provision. If the non-compliance with the requirement of law exposes the assessee to the penal provision, then it is mandatory, but if no penal consequences follow on non-fulfilment of the requirement, then usually it is a directory provision. The Hon'ble Karnataka High Court in ML Srinivasa Shetty & Sons v. State 01 Karnataka [1992] 193 ITR 548 had the occasion to consider the distinction between a mandatory and directory provision. It held : 'In other words, one of the crucial tests to determine whether a particular statutory requirement is mandatory or directory is that the court has to see whether any penal consequences will follow by the non-compliance with a particular statutory requirement. If no penal consequences are indicated, then it would be safe to infer that the statutory requirement was directory and not obligatory or compulsory.1 in reaching this conclusion the Hon'ble High Court relied on the judgment of the Hon'ble Apex Court in State of Uttar Pradesh v. Babu Ram Upadhya AIR 1961 AC 751.

It is trite law that omission to comply with a mandatory requirement renders the action void, whereas omission to do the directory requirement makes it only defective or irregular. On the removal of 6596/Mum/2017 Shree Gajanana Industries (India) Pvt. Ltd., such defect, the irregularity stands removed and the status of validity is attached. There is no dearth of judgments holding the requirement of filing the report of the auditors in connection with the grant of deductions under Chapter VI-A as only directory and not mandatory. In such cases it has been held that even if the audit report was not filed along with the return of income as per the necessity of the relevant section, still the deduction could not be denied if such report was subsequently filed during the course of assessment proceedings. In a case where the assessee failed to submit audit report in support of claim for deduction under sections SOHH and SOJ during the course of assessment proceedings, the Hon'ble High Court in CIT Vs. Trehan Enterprises [2001] 24e ITR 333 /[2000] 108 Taxman 189 (J&K) held that when such report was filed before the Id. CIT(A), it was necessary for him either to allow deduction or send the matter to the file of Assessing Officer for a fresh decision in the light of such report. It, therefore, transpires that non-compliance of directory requirement does not make the action as invalid. As soon as such requirement is fulfilled, the deficiency stands removed and the action is validated. It can also be seen from the mandate of section 139(9), dealing with the defective return, which provides that on the removal of defect, the return becomes valid. In the like manner if the appeal filed by the assessee is only defective, it assumes validity on the removal of such defect or irregularity.

In the present case, the Id. CIT(A) granted a time of ten days to the assessee for depositing the tax due. It was only on the failure of the assessee to do so that the appeal was dismissed as unadmitted. If the assessee had made good the deficiency within the period often days, then the appeal would have been admitted and taken for disposal on merits. It shows that the appeal filed without paying tax due on returned income is only defective but not void. Thus if tax is paid on the income returned, either before or at the time of or after the filing of return, it will be sufficient compliance with the provisions of subsection (4) of section 249. The pre-requisite is that the payment of such tax, in the category of cases in which tax is paid after the filing of return, should be before the admission of first appeal. In case such tax is not paid up to the filing of appeal before the CIT(A), the same shall not be admitted. In other words if the appeal is to be admitted by the first appellate authority, it is sine qua non that the assessee must have made the payment of tax on the income returned. If no payment of tax on the income returned is made at all and the appeal is filed, that cannot be admitted. If however the appeal is filed without the payment of such tax but subsequently the required amount of tax is paid, the appeal shall be admitted on payment of tax and taken up for hearing. Now the moot point for determination is that if the due tax is paid by the assessee after the filing of first appeal but before it is' taken up for consideration, it is admitted and taken up for disposal, then can the 6596/Mum/2017 Shree Gajanana Industries (India) Pvt. Ltd., payment of due tax after the non-admission of appeal by the authority can come to the rescue of the assessee and save the appeal from non- consideration? In our considered opinion the answer to this question needs to be given in affirmative.

The objective behind section 249(4) is to ensure the payment of tax on income returned before the admission of appeal. If such payment after the filing of appeal but before it is taken up for disposal validates the defective appeal, then there is no reason as to why the doors of justice be closed on a poor assessee who, could manage to make the payment of tax at a later date, The stipulation as to the payment of such tax ante the filing of first appeal is only directory and not mandatory. Whereas the payment of such tax is mandatory but the requirement of paying such-tax before filing appeal is only directory. When the defect in the appeal, being the non-payment of such tax, is removed, the earlier defective appeal becomes valid. Once we call an appeal as valid, it is implicit that it is not time-barred. It implies that all the consequences which follow on the removal of defect are that the validity is attached to the appeal from the date when it was originally filed and not when the defect is removed.

The Id. AR submitted that the assessee was facing the financial crunch which led to the non-payment of tax on the returned income at the time required by the Id. CIT(A). It was claimed that on making the payment of tax, the appeal ought to have been admitted by the Id. CIT (A). He relied on the order passed by the Mumbai Bench of the Tribunal in the case of Anant R. Thakore v. Asstt. CIT[20Q6] 5 SOT 298 in which it has been held that the CIT(A) was not justified in dismissing the appeal under section 249(4)( a) where the assessee's application for downward rectification of self-assessment tax was still pending. Per contra the learned Departmental Representative relied on another order passed by the Mumbai Bench of the Tribunal in the case of Bharatkumar Sckhsaris v. Dy. C!T[2002] 82 ITD 512 in which the action of the CIT(A) in not admitting the appeal was held to be justified. He further relied on the judgment of the Karnataka High Court in the case of D. Komelskshi v. Dy. CIT[2007] 162Taxman)16.

In the case of D. Komslakshi (supra), the assessee AOP had three members who had filed returns individually. The assessments were finalized after making some adjustments. After the assessment in the individual capacity, the AOP was also assessed to tax on the same income. However tax paid in individual capacity was not adjusted. Aggrieved thereby, the assessee preferred appeal against the order of the Assessing Officer. For non-compliance of provisions of section 249 (4)(a), the learned CIT(A) did not entertain the appeal. The assessee filed one more appeal before the learned CIT(A) after making the payment of tax which was dismissed on the ground of delay and the order so passed was upheld by the Tribunal. When the matter came up 6596/Mum/2017 Shree Gajanana Industries (India) Pvt. Ltd., before the Hon'ble High Court, it was held that the defect of compliance under section 249(4) was made up by the subsequent action of adjusting the tax and the case for the revival of appeal was made out. Although the fresh appeal filed was not held to be maintainable, the Hon'ble High Court held that the same could be treated as an application for revival of appeal earlier filed. From this judgment, relied on by the learned Departmental Representative, it can be seen that the contention of the assessee was accepted and the CIT (A) was directed to decide the appeal on merits in accordance with law, Here it is relevant to mention that this judgment has been rendered in relation to block period comprising of 1995-96 to 28-9-2001 i.e., after 1- 4- 1989, being the date of amendment carried out in the proviso to section 249(4). So this judgment advances the case of the assessee instead of the Revenue. Insofar as the reliance of the rival parties on the divergent orders passed by the Mumbat Benches are concerned, we do not propose to deal with such decisions in view of our discussion in the earlier paras and the availability of a clear judgment of the Hon'ble Karnataka High Court available on the point, relied on by the learned Departmental Representative on this issue.

Adverting to the facts of the instant case we find that the assessee paid the tax due on income returned albeit after the disposal of appeal by the Id. CIT(A), On such payment, the defect in the appeal due to non-compliance of a directory requirement of paying such tax before the filing of the appeal, stood removed. Ex consequent! this appeal should have been revived by the Id. first appellate authority. Under such circumstances we set aside the impugned order and restore the matter to the file of the learned CIT(A) for disposal of the appeal on merits.

Undisputedly in both the cases, entire amount of taxes have been paid before filing appeal to the Tribunal which is not in dispute. Respectfully following the order of Tribunal as quoted above, we restore both the appeals to the file of CIT(A) for deciding on merit.

In the result, both the appeals are allowed for statistical purposes.