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2010 (3) Supreme 11
SUPREME COURT OF INDIA
S.H. Kapadia and Swatanter Kumar, JJ.
Commissioner of Income Tax, Indore — Appellant(s)
versus
Pawan Kumar Laddha — Respondent(s)
Civil Appeal Nos.8914-8922 of 2003
Decided on : 06-04-2010
Income Tax Act, 1961- Sections 249(4)(a), 253(1)(b), 158BC -Appeal filed by assessee before Income Tax Appellate Tribunal against order under Section 158BC of the Income Tax Act, 1961- Preliminary objection as to the maintainability of appeal raised by Revenue on the ground that assessee having not paid admitted tax before filing the appeal, the appeal preferred by him should be dismissed as not maintainable- Validity –Held doctrine of incorporation cannot be invoked by implication- A provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his filing of appeal under Section 253(1)(b) of 1961 Act is a dis-enabling provision- Such a dis-enabling provision must be clearly spelt out by the Legislature while enacting the statute- It is for the Parliament to specifically say that no appeal shall be filed or admitted or maintainable without the assessee(s) paying the admitted tax due- That had been done only in the case of an appeal under Section 249(4)(a) of 1961 Act- Courts cannot read such a dis-enabling provision into Section 253(1)(b) of 1961 Act- If that is done it is judicially Legislating reading something into the Act which is not there- In such a case, the question would also arise as to why the Appellate Tribunal should not be given the power to dispense with or waive such a condition? - All this would come in the realm of legislation which can be done only by the Legislature- Hence, no merit found in appeals filed by Department-Appeals dismissed (Paras 8 to 10)
Facts of the Case :
An Appeal was filed by assessee before Income Tax Appellate Tribunal against order under Section 158BC of the Income Tax Act, 1961herein in the instant case.A Preliminary objection as to the maintainability of appeal was raised by Revenue on the ground that assessee having not paid admitted tax before filing the appeal, the appeal preferred by him should be dismissed as not maintainable.
Findings of the Court :
Each Heading is a stand-alone item and, therefore, one cannot read the provision of Section 249(4)(a) into Section 253(1)(b) of 1961 Act. If the argument of the Department was to be accepted, then, in that event, no appeal or Reference could lie even to the High Court without complying with the provisions of Section 249(4)(a) of 1961Act. This could not be the Scheme of Chapter XX of 1961 Act. Again under the Scheme of Chapter XX, no appeal under Section 249(4)(a) in Chapter XX(A) was admissible without assessee having paid the admitted tax due on the income returned by him. Once Section 249(4)(a) is treated as a mandatory condition for filing an appeal before Commissioner of Income Tax (Appeals) and once that condition stood satisfied at the time of his filing an appeal to Commissioner of Income Tax (Appeals), then, there was no necessity for the assessee to once again pay the admitted tax due as a condition precedent to his filing the appeal before the Appellate Tribunal under Section 253(1)(b) of 1961 Act. Hence No merit was found in appeals filed by Department Appeals were dismissed
JUDGMENT
S.H. Kapadia,J.
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).
2. 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.
3. 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.
4. 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.
5. None appears for the assessee, though served.
6. The basic argument advanced by Shri V. Shekhar, learned senior counsel appearing on behalf of the Department, before us, was that Section 249(4), inter alia, states that no appeal under this Chapter [i.e., Chapter XX] shall be admitted unless at the time of filing of the appeal, the assessee has paid the admitted tax due on the income returned by him. According to the learned counsel, the present case is covered by Section 249(4)(a) of 1961 Act inasmuch as the assessee, in the present case, did file his Block Return in which he declared his undisclosed income of Rs.26,47,800/-. The assessee, as stated above, however, paid only Rs.22,63,600/- and not the full amount of Rs.26,47,800/-, hence, according to the Department, the appeal preferred by the assessee was not maintainable. In this connect
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