TULSI DAS,NOIDA UP vs. ITO WARD 3(5), NOIDA UP

Briefly the facts qua the present appeal are, assessee is a resident individual. Based on AIR information indicating that assessee had purchased immoveable property worth Rs.46,20,000 during the year under consideration, assessing officer reopened the assessment under Section 147 of the Act. Alleging that the assessee did not comply with the notice issued under Section 142(1) of the Act, the assessing officer proceeded to comply the assessment under Section 144 read with section 147 of the Act, to the best of his judgment. While doing so, he added back an amount of Rs.46,20,000 as unexplained investment under Section 69 of the Act. Against the assessment order so passed, the assessee preferred an appeal before learned Commissioner (Appeals). However, by the impugned order, learned Commissioner (Appeals) dismissed the appeal of the assessee in limine for alleged non-compliance with the mandatory provisions of section 249(4)(b) of the Act.

We have heard Shri A.K. Kundra, learned counsel appearing for the assessee and Shri Om Parkash, learned Departmental Representative.

Undisputedly, learned Commissioner (Appeals) has dismissed assessee’s appeal in limine due to alleged non-compliance with the provisions contained under Section 249(4)(b) of the Act.

On a careful reading of the aforesaid provision, I find that it speaks of a situation, when, an appeal cannot be entertained in a case, where no return has been filed by the assessee and the assessee has paid an amount equal to the amount of advance-tax which was payable by him. Thus, it is apparent, learned Commissioner (Appeals) has proceeded on the basis that for the assessment year under dispute, assessee had not filed any return of income. Whereas, material placed before me clearly indicates that for the assessment year under dispute, assessee filed his return of income on 02.02.2010, declaring income of Rs.1,90,040. In fact, return of income filed by assessee was selected for scrutiny and assessment in case of the assessee was completed under Section 143(3) of the Act vide order dated 24.11.2011, accepting the returned income. It is manifest, learned Commissioner (Appeals) has totally misconceived the facts while dismissing assessee’s appeal in limine by invoking provisions of section 249(4)(b) of the Act, which is not at all applicable to the facts of the present appeal. Therefore, I have no hesitation in setting aside the impugned order of learned Commissioner (Appeals) and restoring the matter back to his file for deciding the issues raised by the assessee on merits, after due and reasonable opportunity of being heard to the assessee. Grounds are allowed for statistical purposes.

In the result, the appeal is allowed for statistical purposes.

This appeal arises out of penalty proceedings under section 271(1)(c) of the Act. There is a delay of 202 days in filing the present appeal.

After considering the submissions of the parties, I am satisfied that the delay in filing the appeal is due to reasonable cause.

Considering the fact that imposition of penalty under Section 271(1)(c) of the Act would depend upon the outcome of the quantum appeal, which is still pending, I am inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issue relating to imposition of penalty under Section 271(1)(c) of the Act to the assessing officer for considering afresh depending upon the result in quantum appeal. Grounds are allowed for statistical purposes.

In the result, both appeals are allowed for statistical purposes.