My client filed his appeal without paying the tax on the returned income, then paid it a fortnight before the Commissioner (Appeals) passed the dismissal order. Is the appeal gone?
No, on the Karnataka High Court's line. Where the admitted tax liability was paid, albeit belatedly and not at the point of filing, the dismissal of the appeal for non-payment at the time of filing is not justified and the appeal must be restored to the Commissioner (Appeals) to be decided on merits. The High Court agreed with the Tribunal, which had followed the Division Bench in CIT-III v. K. Satish Kumar Singh, found no substantial question of law, and dismissed the Revenue's appeals.
Decided by the High Court (Dr. Justice Vineet Kothari and Justice Sreenivas Harish Kumar) on 2017-01-30, reported as I.T.A. No. 100138 of 2015 c/w I.T.A. Nos. 100110, 100136, 100137 and 100140 of 2015, High Court of Karnataka, Dharwad Bench. It bears on section 249(4), section 249, section 260A of the Income Tax Act 1961, in Appeals matters.
This is the answer to a s.249(4)(a) dismissal, and the facts show how close the timing can be: the appeal was filed on 26 April 2013 without payment, the tax was paid on 10 February 2014, and the Commissioner (Appeals) dismissed the appeal on 28 February 2014 — that is, the payment preceded the dismissal by eighteen days and that was enough. Counsel for the Revenue fairly conceded the point. The limit to note is that this is a High Court of Karnataka line, resting on K. Satish Kumar Singh; it sits in tension with the literal words of s.249(4), which speak of payment 'at the time of filing of the appeal', and D. Komalakshi from the same Court treats the requirement as mandatory. The practical reconciliation the cases suggest is that the bar is real but is spent once the money is in before the appellate authority acts. Do not assume every High Court follows this.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The assessee filed appeals before the Commissioner (Appeals)-VI, Bengaluru on 26 April 2013 for assessment years 2005-06 to 2011-12. The admitted tax liability was not paid at the time of filing. It was paid on 10 February 2014. The Commissioner (Appeals) dismissed the appeals on 28 February 2014 for non-payment at the time of filing. The Tribunal at Panaji, by order dated 24 March 2015, relying on the Division Bench of the same High Court in Commissioner of Income Tax-III v. K. Satish Kumar Singh, set aside that dismissal and held that as the admitted tax liability had been paid, albeit belatedly, the appeals deserved to be decided on merits. The Revenue appealed under s.260A. Counsel for the Revenue fairly submitted that the admitted tax liability had been deposited before the dismissal of the appeal by the Commissioner (Appeals), and that in terms of K. Satish Kumar Singh the order impugned could not justifiably be assailed.
The Revenue's appeals were dismissed, with no costs (paragraph 9). The Tribunal had followed the Division Bench of the same High Court and had rightly held that, the admitted tax liability having been paid later on, the dismissal of the appeal on the ground of non-payment at the point of time of filing was not justified, and the appeals were rightly restored to the file of the Commissioner (Appeals) for consideration on merits. No substantial question of law arose (paragraph 8).
The Court quoted s.249 at paragraph 6, noted at paragraph 7 that the Division Bench in K. Satish Kumar Singh had, after referring to the Supreme Court's decision in Vijay Prakash D. Mehta v. Collector of Customs, laid down principles regarding statutory rights of appeal and conditions precedent, and at paragraph 8 recorded its respectful agreement with the Tribunal's application of that decision. The Revenue's own concession that payment preceded the dismissal left nothing to decide.
Since the learned Tribunal by the order impugned before this Court has followed the decision of the Division Bench of this Court and has held that in view of the admitted tax liability paid by the assessee later on, the dismissal of the appeal on the ground of non-payment of the admitted tax liability at the point of time of filing of the said appeal was not justified and the appeals were thus restored on the file of learned CIT(A) for considering the said appeals on merits in terms of the judgment of the Division Bench of this Court, with which we respectfully agree.
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Handle my notice → Ask a CA on WhatsAppNo, on the Karnataka High Court's line. Where the admitted tax liability was paid, albeit belatedly and not at the point of filing, the dismissal of the appeal for non-payment at the time of filing is not justified and the appeal must be restored to the Commissioner (Appeals) to be decided on merits. The High Court agreed with the Tribunal, which had followed the Division Bench in CIT-III v. K. Satish Kumar Singh, found no substantial question of law, and dismissed the Revenue's appeals. This was decided by the High Court (Dr. Justice Vineet Kothari and Justice Sreenivas Harish Kumar) and bears on section 249(4), section 249, section 260A of the Income Tax Act 1961. It is reported as I.T.A. No. 100138 of 2015 c/w I.T.A. Nos. 100110, 100136, 100137 and 100140 of 2015, High Court of Karnataka, Dharwad Bench. This is the answer to a s.249(4)(a) dismissal, and the facts show how close the timing can be: the appeal was filed on 26 April 2013 without payment, the tax was paid on 10 February 2014, and the Commissioner (Appeals) dismissed the appeal on 28 February 2014 — that is, the payment preceded the dismissal by eighteen days and that was enough. Counsel for the Revenue fairly conceded the point. The limit to note is that this is a High Court of Karnataka line, resting on K. Satish Kumar Singh; it sits in tension with the literal words of s.249(4), which speak of payment 'at the time of filing of the appeal', and D. Komalakshi from the same Court treats the requirement as mandatory. The practical reconciliation the cases suggest is that the bar is real but is spent once the money is in before the appellate authority acts. Do not assume every High Court follows this. If it applies to you, the first step is this: If the appeal was filed without payment, pay the tax on the returned income at once and file the challan with the Commissioner (Appeals) before the appeal is taken up — the date that mattered here was the date of payment against the date of the appellate order, not the date of filing.
The assessee filed appeals before the Commissioner (Appeals)-VI, Bengaluru on 26 April 2013 for assessment years 2005-06 to 2011-12. The admitted tax liability was not paid at the time of filing. It was paid on 10 February 2014. The Commissioner (Appeals) dismissed the appeals on 28 February 2014 for non-payment at the time of filing. The Tribunal at Panaji, by order dated 24 March 2015, relying on the Division Bench of the same High Court in Commissioner of Income Tax-III v. K. Satish Kumar Singh, set aside that dismissal and held that as the admitted tax liability had been paid, albeit belatedly, the appeals deserved to be decided on merits. The Revenue appealed under s.260A. Counsel for the Revenue fairly submitted that the admitted tax liability had been deposited before the dismissal of the appeal by the Commissioner (Appeals), and that in terms of K. Satish Kumar Singh the order impugned could not justifiably be assailed. The matter was decided on 2017-01-30 by the High Court (Dr. Justice Vineet Kothari and Justice Sreenivas Harish Kumar). On those facts the High Court held as follows. The Revenue's appeals were dismissed, with no costs (paragraph 9). The Tribunal had followed the Division Bench of the same High Court and had rightly held that, the admitted tax liability having been paid later on, the dismissal of the appeal on the ground of non-payment at the point of time of filing was not justified, and the appeals were rightly restored to the file of the Commissioner (Appeals) for consideration on merits. No substantial question of law arose (paragraph 8).
The Court quoted s.249 at paragraph 6, noted at paragraph 7 that the Division Bench in K. Satish Kumar Singh had, after referring to the Supreme Court's decision in Vijay Prakash D. Mehta v. Collector of Customs, laid down principles regarding statutory rights of appeal and conditions precedent, and at paragraph 8 recorded its respectful agreement with the Tribunal's application of that decision. The Revenue's own concession that payment preceded the dismissal left nothing to decide. In the words reproduced by the source cited on this page: "Since the learned Tribunal by the order impugned before this Court has followed the decision of the Division Bench of this Court and has held that in view of the admitted tax liability paid by the assessee later on, the dismissal of the appeal on the ground of non-payment of the admitted tax liability at the point of time of filing of the said appeal was not justified and the appeals were thus restored on the file of learned CIT(A) for considering the said appeals on merits in terms of the judgment of the Division Bench of this Court, with which we respectfully agree." The decision followed or applied Commissioner of Income Tax-III v. K. Satish Kumar Singh (2012) 209 Taxman 502 (Kar) — followed; Vijay Prakash D. Mehta v. Collector of Customs (1989) 175 ITR 540 — referred to through K. Satish Kumar Singh.
It was decided by the High Court on 2017-01-30 and is reported as I.T.A. No. 100138 of 2015 c/w I.T.A. Nos. 100110, 100136, 100137 and 100140 of 2015, High Court of Karnataka, Dharwad Bench. Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section 249(4), section 249, section 260A, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The Revenue's appeals were dismissed, with no costs (paragraph 9). The Tribunal had followed the Division Bench of the same High Court and had rightly held that, the admitted tax liability having been paid later on, the dismissal of the appeal on the ground of non-payment at the point of time of filing was not justified, and the appeals were rightly restored to the file of the Commissioner (Appeals) for consideration on merits. No substantial question of law arose (paragraph 8). It arises in Appeals matters, on section 249(4), section 249, section 260A of the Income Tax Act 1961, and was decided by Dr. Justice Vineet Kothari and Justice Sreenivas Harish Kumar. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Where the appeal has already been dismissed under s.249(4) and the tax was paid before that dismissal, take the point squarely before the Tribunal and ask for restoration for a hearing on merits, which is the relief the Tribunal gave and the High Court upheld. Cite this decision together with CIT-III v. K. Satish Kumar Singh, which is the Division Bench authority it follows; the judgment records that the latter itself relied on Vijay Prakash D. Mehta v. Collector of Customs (1989) 175 ITR 540 on statutory appeal rights and conditions precedent. Outside Karnataka, check the position in your own High Court before advising that late payment cures the defect, and in the meantime pay before filing. Where you act for the department, note that counsel here conceded on the facts; the concession, not a contested finding, carried the case.
Validity check could not be completed. Validity check could not be completed: no search for later treatment was run, and the position in High Courts other than Karnataka on whether payment after filing cures the s.249(4) bar has NOT been checked. K. Satish Kumar Singh, the Division Bench decision this judgment follows, was not itself retrieved and read this pass; it is named here only as the authority the Court says it applied. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The order is short — nine numbered paragraphs, ending at paragraph 9 with 'The appeals of the Revenue are accordingly dismissed. No costs.' A first retrieval through the plain document URL returned the header verbatim and the disposal but compressed the middle; the full paragraph sequence was obtained on the print route and the operative sentence at paragraph 8 was then re-confirmed word for word on the docfragment route. The judgment reproduces s.249 at paragraph 6, but the retrieval returned a marker in place of the quoted statutory text rather than the text itself, so nothing about the wording of s.249 is stated from this source. The citation of K. Satish Kumar Singh printed in the judgment is '(2012) 209 TAXMAN 502 Kar'; that is a citation string appearing inside the judgment and is reproduced only as a locator. The assessment years covered by the appeals before the Commissioner (Appeals) are recorded as 2005-06 to 2011-12. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The Revenue's appeals were dismissed, with no costs (paragraph 9). The Tribunal had followed the Division Bench of the same High Court and had rightly held that, the admitted tax liability having been paid later on, the dismissal of the appeal on the ground of non-payment at the point of time of filing was not justified, and the appeals were rightly restored to the file of the Commissioner (Appeals) for consideration on merits. No substantial question of law arose (paragraph 8).
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