2007-VIL-483-MAD-DT

Equivalent Citation: [2008] 296 ITR 43

MADRAS HIGH COURT

Date: 12.03.2007

S. ALAGARSWAMY

Vs

INCOME-TAX OFFICER AND ANOTHER.

BENCH

Judge(s)  : P. D. DINAKARAN., MRS. CHITRA VENKATARAMAN.

JUDGMENT

The judgment of the court was delivered by

P.D. DINAKARAN J.- The petitioner seeks to quash the order dated August 28, 2001, made in Appeals Nos. 390, 391 and 392 of 2000-01 dismissing the appeals preferred against the assessment order dated March 31, 2000, made by the first respondent for the assessment years 1993-94, 1994-95 and 1995-96 for non-payment of tax due as per the returns of income filed by the petitioner as contemplated under section 249(4) (a) of the Income-tax Act (for brevity, "the Act").

In this regard, it is apt to refer section 249(4)(a) of the Act, which reads asunder:

"249. Form of appeal and limitation.-...

(4) 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, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals), may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause."

A reading of section 249(4)(a) of the Act makes it clear that payment of tax due on the income returned by the assessee before filing an appeal against the assessment order is a condition precedent and non-compliance of the same renders the appeal not maintainable. We, therefore, do not see any illegality or irregularity, or any arbitrary exercise of power or violation of the principles of natural justice in the order impugned in this writ petition. Our above view is also supported with the decision of this court in CIT v. Smt. G.A. Samanthakamani [2003] 259 ITR 215.

That apart, the writ petition also suffers from laches as the petitioner had chosen to challenge the order dated August 28, 2001, which was received on September 5, 2001, only during December, 2003.

For the reasons aforesaid, the writ petition is dismissed, of course, making it clear that if the petitioner seeks any exemption under the proviso to section 249(4)(b), he is at liberty to take an application for such exemption before the authority concerned. No costs.

 

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