M.S.FATHIMA,CHENNAI vs. ITO, CHENNAI

This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-10, Chennai (‘CIT(A)’ for short) dated 30.03.2016, partly allowing the assessee’s appeal contesting her assessment u/s. 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for Assessment Year (A.Y) 2008-09 vide the order dated 30.12.2010.

At the very outset, it was observed by the Bench that the defect memo raised by the Registry of the Tribunal has not been addressed by the assessee. On being inquired in the matter, it was explained by the ld. Authorized Representative (AR), the assessee’s counsel, that prior to AY 2009-10, the 2 (AY 2008-09) M.S.Fathima v. ITO practice was to issue manual challans which do not expressively show the sub head under which the appeal fees, stated to be paid in the applicable sum of �. 10,000/-, stands paid in the payer’s copy. The said detail appears only in the first half of the challan which is retained by the payee, so that there is no manner in which it could be shown that the appeal fee has been paid under the proper sub-head, i.e., ‘Others’ and, thus, meet the objection raised by the Registry of the Tribunal. The assessee has, he would further add, no case on merits in-as-much as the income chargeable u/s. 15, i.e., under the head ‘Salaries’, includes not only that paid but also that allowed by the assessee’s employer (during the relevant previous year), i.e., due for payment, or receivable as at the year-end.

I have heard the parties, and perused the material on record. While it may well be that what the ld. AR states is correct, the challan on record clearly shows that the payment of �. 10,000/-, claimed to be paid under this sub-head ‘Others’, is income tax on regular assessment for AY 2008-09. The objection raised by the Registry is thus valid. While in the normal course this tribunal would be inclined to allow the assessee an opportunity to establish the payment of the appeal fee per (say) a certificate from the bank through which the payment stands made, i.e., as to the head of account under which the said payment has been made, in the circumstances, in view of the clear position of law, even as conceded to by the ld. AR, no useful purpose would be served by doing so. As apparent, this also explains the absence of any request by the assessee for time (opportunity) to substantiate her claim of payment of appeal fee. Further still, this aspect was also made clear to the ld. AR in-as-much as an order of merits is appealable, while the implication of non-removal of the defect is the appeal being dismissed in limine as not maintainable. Here it may also be pertinent to clarify that where the sum is deposited as tax on regular assessment, as reflected in the payment challan on record, it is not possible for either the 3 (AY 2008-09) M.S.Fathima v. ITO assessee or even the Revenue to change the same, and the assessee would stand to be allowed credit for the same and, thus, adjusted against his tax liability for the relevant year. In view of the foregoing, I am constrained to dismiss the assessee’s appeal as not admissible, being defective for want of payment of the appeal fee. I decide accordingly.

In the result, the assessee’s appeal is dismissed as not maintainable. Order pronounced in the open court on the conclusion of the hearing.