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1986 Supreme(Ori) 239
IN THE HIGH COURT OF ORISSA
K.P. Mohapatra, D.P. Mohapatra, JJ.
COMMISSIONER OF INCOME TAX - APPELLANT
Versus
KALIPADA GHOSE - RESPONDENT
S.J.C. Nos. 59 and 60 of 1987
Decided On : 22-09-1986
R.B. Roy and D.K. Mohapaira, for the Respondent
An order of the AAC dismissing an appeal for non-compliance with Section 249(4) of the Income Tax Act, 1961, is an order passed under Section 250 of the Act and is appealable to the Tribunal under Section 253 of the Act.
Headnote:
INCOME TAX - APPEAL TO TRIBUNAL - ORDER OF APPELLATE ASSISTANT COMMISSIONER DISMISSING APPEAL FOR NON-COMPLIANCE OF SECTION 249(4) OF THE ACT - WHETHER APPEALABLE TO TRIBUNAL U/S 253 OF THE ACT - YES
Fact of the Case:
The assessee filed appeals before the Appellate Assistant Commissioner (AAC) against the assessment orders passed by the Income Tax Officer (ITO) for the assessment years 1974-75 and 1975-76. The AAC dismissed the appeals in limine for non-compliance with Section 249(4) of the Income Tax Act, 1961, which required the assessee to pay the admitted tax before filing the appeal. The assessee appealed to the Tribunal, which directed the AAC to accept the assessee's reason for non-payment of the admitted tax and admit the appeals for disposal on merits. The Revenue filed an application under Section 256(2) of the Act, seeking a reference to the High Court on the question of whether the AAC's order dismissing the appeals was appealable to the Tribunal under Section 253 of the Act.
Finding of the Court:
The High Court held that the AAC's order dismissing the appeals for non-compliance with Section 249(4) of the Act came within the ambit of Section 250 of the Act and was appealable before the Tribunal under Section 253 of the Act. The court reasoned that the scheme of the Act was that after an appeal is presented under Section 249, it is to be disposed of under Section 250, and therefore, any order by which the appeal stands disposed of comes within the purview of Section 250.
Issues: Whether the AAC's order dismissing the appeals for non-compliance with Section 249(4) of the Act was appealable to the Tribunal under Section 253 of the Act.
Ratio Decidendi: The court relied on the decision of the Supreme Court in Mela Ram and Sons Vs. The Commissioner of Income Tax Punjab, wherein it was held that an order by the AAC that there was no sufficient reason for excusing delay under Section 30(2) of the Income Tax Act and rejecting the appeal as time-barred is an order passed under Section 31 and an appeal lies from that order to the Appellate Tribunal. The court observed that it makes no difference whether the order of dismissal is made before or after the appeal is admitted.
Final Decision: The court answered the question referred to it in the affirmative, holding that the Tribunal had jurisdiction to entertain the appeals and condone the delay in filing the appeals.
JUDGMENT :
D.P. Mohapatra, J. - On the applications filed by the Revenue u/s 256(2) of the Income Tax Act, 1961, this court directed the Income Tax Appellate Tribunal to state a case and refer the following question for opinion of the court:
" Whether, on the facts and in the circumstances of the case, where the Appellate Assistant Commissioner had dismissed the appeal for non-compliance of Section 249(4) of the Act, his order amounted to one within the ambit of Section 250 of the Act so as to be subjected to second appeal before the Tribunal u/s 253 of the Act ? "
2. Accordingly, the aforesaid question of law has been referred by the Tribunal for the opinion of this court. The gist of the relevant facts may be stated as follows:
The assessee, Kalipada Ghose, was the proprietor of New Ganguram Sweets at Bhubaneswar. The assessment years involved are 1974-75 and 1975-76. The Income Tax Officer determined the total income of the asses-see at Rs. 17,500 and Rs. 30,000, respectively, for these years. The assessee filed appeals on October 29, 1975. The Appellate Assistant Commissioner considering the Taxation Laws (Amendment) Act, 1975, under which a new provision in Section 249 was introduced with effect from October 1, 1975, to the effect that no appeal shall be admitted unless at the time of filing of the appeal, the admitted tax on the returned income has been paid, found that the assessee having not paid the admitted tax for the years in question, the appeals were incompetent and accordingly rejected the same in limine. The assessee, being aggrieved by the order, appealed to the Tribunal. The Tribunal on a consideration of the provisions u/s 249(4) of the Act, the fact that the assessee deposited the admitted tax subse- quently on June 15, 1976, and also the fact that the provision was a new one, not well-known to all concerned, directed the Appellate Assistant Commissioner to accept the reason given by the assessee for non-payment of the admitted tax before the filing of the appeal and to admit the appeal for being disposed of on merits. The correctness and validity of this order is in question.
3. It was urged before this court on behalf of the Revenue that the appeals to the Tribunal have been provided u/s 253 of the Act against the decision made u/s 250 of the Act. Since, in the present case, the appeals were dismissed in limine for non-compliance of Section 249(4) of the Act, the decision of the first appellate authority was not one u/s 250 of the Act and, therefore, the said order was not appealable u/s 253. On the aforesaid contention, this court directed a reference on the point noticed earlier.
4. Section 253, inter alia, provides that any assessee aggrieved by an order passed by an Appellate Assistant Commissioner or, as the case may be, a Commissioner (Appeals) under Sub-section (2) of Section 131, Section 154, Section 250 or Section 271, Section 271A or Section 272A may appeal to the Appellate Tribunal against such order.
5. Section 249 deals with form of appeal and limitation. Sub-section (4) thereof provides that "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, on an application made by the appellant in this behalf, the Appellate Assistant Commissioner or, as the case may be, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provision of this sub-section."
6. u/s 250 of the Act, the procedure to be followed in appeal is laid down. Under Sub-section (1) of the said section, the Appellate Assistant Commissioner or, as the case may be, the Commissioner (Appeals) shall fix a day and place for the hearing of the appeal, and shall
