LAKSHMI NAYAK,SIMILIGUDA, KORAPUT vs. ITO, JEYPORE

It was submitted by the ld. AR that the assessee is an individual doing business in the purchase and sale of vegetable and fruits. It was the submission that the assessee had deposited Rs.11,07,538/- in her bank account during the demonetization period. It was the submission that as the assessee did not have any income liable for taxing, the assessee had not filed her return of income. It was the submission that the AO on the ground that the assessee has deposited Rs.11,05,000/- in her bank account during the demonetisation period, initiated assessment proceedings against the assessee and completed the assessment ex- parte treating the amount of Rs.11,05,000/- as the unexplained income of the assessee. On appeal, the ld. CIT(A) dismissed the appeal of the assessee vide order dated 09.02.2024 holding that as per provisions of Section 249(4)(b) of the Act, the appeal is not to be admitted unless the assessee has paid an amount equal to the amount of advance tax which was payable by him, if no return of income has been filed. Ld. AR placed before us the Form 26AS/Annual tax statement for the assessment year 2017-2018, wherein it shows that an amount of Rs.11,39,440/- has already been paid as on 21st March, 2020 much before the filing of the appeal before the ld. CIT(A). It was the submission that the order of the ld. CIT(A) is erroneous and is liable to be set aside. It was the submission that in the interest of justice, the issues may be restored to the file of AO so that the assessee can explain the deposit of Rs.11,05,000/-.

In reply, ld. Sr. DR vehemently supported the order of the ld. CIT(A). It was the submission that the amount of Rs.11,39,440/- were the recoveries and not the advance tax. It was the submission that the appeal of the assessee is liable to be dismissed.

I have considered the rival submissions. Admittedly, in the present case, before filing of the appeal itself, the taxes to an extent of Rs.11,39,440/- has already been recovered. The said amount is shown in the credit of the assessee in the Form 26AS. Once the amount is recovered from the assessee, it forms part of the taxes paid by the assessee and the same is far in excess of the amount of advance tax which was payable. The assessee admittedly has not filed the return of income and has claimed that she does not have any income chargeable to tax under the head income from profit and gains and business or