The Amritsar Bench of Income Tax Appellate Tribunal (ITAT) held that the appeal order is not maintainable for violation of Section 249(4) of Income tax Act,1961 for non-payment of the admitted tax.
The matter was remitted back to the Commissioner of Income tax (Appeals) [CIT(A)] for adjudication of the issue contravening the provisions of section 249(4) of the Income Tax Ac,1961.
The assessee M/s Sukhbir Agro Energy Ltd filed income tax returns under Section 139(1) of Income Tax Act. The return was processed and considered as defective by the Centralised processing Centre (CPC).
A notice was issued under Section 139(9) of the Income Tax Act to the assessee, in reply the assessee filed return under Section 139(9) of the Income Tax Act and claimed the additional depreciation, which was not calculated in the original return.
The Assessing Officer (AO) disallowed the relief of additional depreciation under Section 32(1) in assessment order, passed under Section 143(3) of the Income Tax Act.
The assessee filed a rectification petition under Section 154 of the Income Tax Act with a claim of additional depreciation under Section 32(1) of the Income Tax Act.
The AO disallowed the assessee’s claim and rejected the rectification petition. Being aggrieved by the order, the assessee filed an appeal before the Commissioner of Income Tax (Appeal) by challenging the orders of the Assessing Officer.
The Commissioner of Income Tax (Appeal) considered the assessee’s appeal and allowed the depreciation after a due verification completed from the AO. Aggrieved by the order, the revenue filed an appeal before ITAT.
The Departmental Representative Mr. Rahul Dhawan, vehemently argued that, the appeallate order itself caused nullity due to non-payment of admitted tax which contravenes Section 249(4) of the Income Tax Act.
Further asserted that, in the written submission of the assessee, the ground of the revenue, related to non-payment of admitted tax was not rebutted.
The assessee did not explain the issue relating to non-payment of admitted tax or not made any objections related to this ground of revenue in the written submission.
The ITAT Bench comprising Dr. M. L. Meena, Accountant Member and SH. Anikesh Banerjee, Judicial Member observed that without payment of the due tax during filing of return, the appeal before the Commissioner of Income Tax (Appeal) is caused the violation of Section 249(4) of the Income Tax Act.
Also, the appeallate order under Section 250 of the Income Tax Act was itself nullified, is not maintainable before the bench.
The Tribunal observed that the first appeal under Section 249(4) of the Income Tax Act is not maintainable on account of non-payment of admitted tax.
The bench further noted that the issue related claim of Section 32(1)(iia) of the Income Tax Act for additional depreciation is entirely a factual issue. However, the appeal order itself caused not maintainable for violation of Section 249(4) of the Income Tax Act for non-payment of the admitted tax.
Hence the Tribunal remitted back the matter to the Commissioner of Income Tax (Appeal) for fresh adjudication of the issue in regards to contravention of Section 249(4) of the Income Tax Act and allowed the appeal for statistical purposes.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
