COMMISSIONER OF INCOME TAX Vs. PAWAN KUMAR LADDHA

JUDGEMENT

(1.) At the hearing of the appeal filed by the assessee before the Income Tax Appellate Tribunal against the order under Section 158BC of the Income Tax Act, 1961, the Revenue raised a preliminary objection as to the maintainability of the appeal on the ground that the assessee having not paid the admitted tax before filing the appeal, the appeal preferred by him should be dismissed as not maintainable. In this connection, reliance was placed by the Department in support of it's preliminary objection on Section 249(4)(a) of the Income Tax Act, 1961 ['1961 Act', for short]. The Revenue invited the attention of the Income Tax Appellate Tribunal ['Appellate Tribunal', for short] to letter dated 19th October, 2001, wherein it was stated that the assessee had paid a sum of Rs. 22,63,600/- before filing of the appeal out of Rs. 26,47,800/- payable by the assessee in terms of his Block Returns. Before the Appellate Tribunal, the assessee objected to the above contention of the Department on the ground that Section 249(4) of 1961 Act cannot be read into Section 253(1)(b) which deals with the Appeals to the Appellate Tribunal and which falls in Chapter XX(B). According to the assessee, Section 249, which deals with Appeals to the Commissioner (Appeals), falls in Chapter XX(A), whereas Appeals to the Appellate Tribunal under Section 253(1)(b) falls in Chapter XX(B). After going through the provisions of Section 249(4)(a) and Section 253(1)(b) of 1961 Act, which, at the relevant time, dealt with an order passed by the Assessing Officer under Section 158BC(c) of 1961 Act, the Appellate Tribunal held that one cannot read Section 249(4)(a) into the provisions of Section 253(1)(b) of 1961 Act; that while Section 253(1) was an enabling provision giving right of appeal to the assessee to file an appeal to the Appellate Tribunal, there was no provision similar to Section 249(4)(a), which fell in Chapter XX(A) in Section 253(1)(b), hence, it was not a condition mandatory to the filing of the appeal to the Appellate Tribunal to pay undisputed tax amount as condition precedent. Consequently, according to the Appellate Tribunal, there was no merit in the contention of the Department that an assessee must pay the admitted tax due before or at the time of filing of the appeal before the Appellate Tribunal.

(2.) Aggrieved by the decision of the Appellate Tribunal on the preliminary objection raised by the Department, the matter was carried in appeal under Section 260A of 1961 Act by the Department to the High Court of Madhya Pradesh, Indore Bench, which has affirmed the view of the Appellate Tribunal. Hence, these civil appeals.

(3.) At the outset, we may state that, in these civil appeals, we are concerned with Block Period 1986-1987 to 14th September, 1995. This aspect is important because the law has since undergone several changes, particularly after 1st October, 1998, in the matter of grant of stay by the Appellate Tribunal under Section 253(7) of 1961 Act, which Sub-section did not exist during the relevant period. Hence, this judgement is confined to the period prior to 1st October, 1998.