Commissioner of Income Tax vs Smt. Deivamalar

K. Raviraja Pandian, J.—The appeal is filed by the Revenue against the order of the Income Tax Appellate Tribunal, Madras, "D" Bench dated May 11, 2007, in I. T. A. No. 227/Mds/2006. The relevant assessment year is 2000-01. The substantial questions of law formulated for entertainment of the appeal are as follows:

Whether, on the facts and in the circumstances of the case, the Income Tax Tribunal is right in not considering Section 249(4) in view of the fact that as per the amendment made with effect from April 1, 1989, by the Direct Tax Laws (Amendment) Act, 1989, no power is conferred on the appellate authority to deal with a case where a return has been filed without payment of admitted tax ?

(2) Whether, on the facts and in the circumstances of the case, the Income Tax Tribunal is right in not considering the judgment of the Madras High Court in the case of Commissioner of Income Tax Vs. Smt. G.A. Samanthakamani, wherein it had been held that no appeal against a penalty should be admitted unless the admitted tax liability was paid by the assessee ?

(3) Whether, on the facts and in the circumstances of the case, the Income Tax Tribunal is right in not considering the fact that Section 249(4)(a) is mandatory and that a return has to be filed by the assessee and the tax due on the income returned if not paid shall not be admitted and has to be dismissed in limine ?

The facts of the case as culled out from the grounds of appeal is as follows:

The assessee is a partner in a firm M/s. Thirupathi Gounder Kalyana Mandapam. A survey u/s 133A was conducted in the case of the firm on March 8, 2001. Consequent to the survey, no return was filed by the firm as well as the partners including the assessee. Therefore, proceedings u/s 147 was initiated in the case of the assessee to assess the escaped income. The assessee by her letter dated April 27, 2005, informed the Assessing Officer that the return filed on January 13, 2005, may be treated as return filed in response to the notice u/s 148. The assessment was completed u/s 143(3) read with 147 on June 21, 2005. The assessee went on appeal against the assessment order. The Commissioner of Income Tax (Appeals) dismissed the assessee''s appeal without entertaining the same on the ground that the admitted tax on the returned income was not paid till the date of filing of the appeal. The assessee aggrieved by the order of the Commissioner of Income Tax (Appeals), filed a further appeal before the Tribunal and the Tribunal set aside the order of the Commissioner of Income Tax (Appeals) with a direction to decide the issue on the merits after verifying the payment of tax on admitted income. The correctness of the said order is now put in issue before us in this appeal.

We heard the argument of the learned Counsel appearing for the Revenue.

It is the contention of the assessee before the Tribunal that the finding arrived at by the Commissioner of Income Tax (Appeals) that the assessee has not paid the admitted tax on the returned income is not correct. The assessee has made the payment of tax due on the admitted income for the assessment year 2000-01 but wrongly remitted it for the subsequent year 2001-02. Hence, the order of the Commissioner of Income Tax (Appeals) is not correct. That statement of fact has not been rebutted by the Department.

In order to verify the factual statement made by the assessee, the Tribunal has remitted the case with a direction to the Commissioner of Income Tax (Appeals) to decide the issue on the merits after verifying the fact of payment of tax on the admitted income for the assessment year in dispute as stated by the assessee.

In the remittal order, we find no irregularity. Further, we do not find any question of law, much less, a substantial question of law to entertain the appeal. Hence, the appeal is dismissed.