FAKHRUDDIN BHURA,MUMBAI vs. ITO, INT TAX WARD 2(2)(1), MUMBAI, MUMBAI
IN THE INCOME-TAX APPELLATE TRIBUNAL “F” BENCH,
MUMBAI
BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER
Fakhruddin Bhura
Flat No. 1501, A Wing, Lodha
Park, Kiara T5, Lower Parel,
Mumbai
–
400
013,
Maharashtra v/s.
बनाम
Income Tax Officer, Ward –
2(2)(1),
Kautilya
Bhavan,
Bandra Kurla Complex, BKC,
Bandra (East), Mumbai –
400 051, Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AOAPB7584G
Appellant/अपीलार्थी
..
Respondent/प्रतिवादी
Appellant by :
Shri Kishore Rajshirkhe, AR
Respondent by :
Ms.Kavitha Kaushik (Sr. DR)
Date of Hearing
04.11.2025
Date of Pronouncement
18.11.2025
आदेश / O R D E R
PER PRABHASH SHANKAR [A.M.] :-
The present appeal arising from the appellate order dated
31.01.2024 is filed by the assessee against the order passed by the Learned Commissioner of Income-tax (Appeals)/National Faceless
Appeal Centre, Delhi [hereinafter referred to as “CIT(A)”] pertaining to assessment order passed u/s. 147 r.w.s. 144 of the Income-tax Act, 1961
[hereinafter referred to as “Act”] dated 23.03.2022 for the Assessment
Year [A.Y.] 2016-17. P a g e | 2
A.Y. 2016-17
Fakhruddin Bhura, Mumbai
The grounds of appeal are as under:
That the learned Commissioner of Income Tax (Appeals) (CIT (A)] erred in dismissing the appeal, invoking provisions of sec. 249(4)(b) holding that appellant failed to make payment of amount equal to advance tax, without appreciating the facts of the case properly and judiciously. The provisions of sec. 249(4)(b) are not applicable in the present case. The order impugned in appeal is illegal and not sustainable. 2. That the learned CIT(A) failed to consider that the assessment order is legally unsustainable on the ground that the Assessing Officer has erred in law and on facts in making an addition of Rs. 2,22,64,200/- to the income without specifying the relevant section of the Income Tax Act, 1961, under which the said addition has been made. 3. That the learned CIT (A) erred in law and on facts in dismissing 3 the appeal on a statistical basis, without adjudicating the issues raised on merits. 4. The Appellant craves leave to add, alter, amend OR substitute the above referred ground OR to add any other grounds of appeals. 5. That the learned CTT(A) failed to consider the settled position of law and relevant judicial precedents which hold that Section 249(4)(b) applies only when advance tax is legally payable, and mere omission in payment, in the absence of actual liability, cannot render the appeal defective OR liable for rejection. 3. It is noticed that the instant appeal is substantially delayed by 522 days. In this regard, the assessee has submitted a condonation petition alongwith an affidavit stating that he is NRI residing in Kuwait from 1997. It is contended that after the dismissal of his appeal by the ld.CIT(A) on 31.01.2024, he filed an application for rectification u/s 154 on 27.02.2024 which is still pending. However, as per advice of P a g e | 3 A.Y. 2016-17
Fakhruddin Bhura, Mumbai consultant, he filed the instant appeal after coming to India in August
2025.The delay is requested to be condoned.
4. On careful consideration of the submissions of the assessee and on perusal of the affidavit filed before the appellate authority, we are of the considered opinion that the delay in filing of the appeal does not appear to be intentional but due to the fact that the assessee was seeking alternative remedy before the appellate authority which however, did not culminate in any favourable result and is stated to be still pending.
Moreover, the assessee is an NRI working out of India since long.
Therefore, lack of proper communication cannot be ruled out for the delay. We are of the view that rejection of the request for condonation would cause genuine hardship to the assessee. In this connection, reliance could be placed on the landmark decision of hon’ble Supreme
Court which inter alia held in Collector, Land Acquisition v Mst.
Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late……..Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated….Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the P a g e | 4
A.Y. 2016-17
Fakhruddin Bhura, Mumbai court that he had sufficient cause for not preferring the appeal or making the application within such period…. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk.”Accordingly, in the interest of justice, we condone the delay.
5. Briefly stated facts of the case as per the assessment order are that the assessee did not file return of income for the relevant year. As per data available with the AO, it was seen that the assessee purchased an immovable property valued at Rs. 2,22,64,200/-. He was also deriving interest income from bank. Subsequently, the case was reopened u/s 147 of the Act. In response, neither any return was filed by the assessee nor any compliance was made by him although notices were sent on the registered email of the assessee. Therefore, the assessment order was passed u/s 144 of the Act at Rs. 2,22,79,179/-.
6. Aggrieved, an appeal was filed by the assessee before the ld.CIT(A) who however, observed that there was deficiency in the appeal filed in Form No.35 as tax on returned income was not paid/particulars of payment were not mentioned therein. Since the notice was not responded, it was inferred that, the appellant did not have anything to say in this matter. He noted that as per the assessment order under section 147 r.w.s. 144 of the Act, it is stated that the appellant had not P a g e | 5
A.Y. 2016-17
Fakhruddin Bhura, Mumbai filed the return of income and the AO had computed the total income at Rs.2,22,79,179/- and computed the tax payable at Rs.1,85,04,798/- which included the advance tax payable by the appellant as well as the interest on account of delayed payment of advance tax. As per section 249(4)(b) of the Act, the appeal shall not be admitted, unless the appellant paid an amount equal to the amount of advance tax which was payable. As the applicable advance tax was not paid by him before filing of the present appeal, the present appeal was not admitted as per the provisions of section 249(4) of the Act.
7. Before us, it is contented by the ld.AR that the assessee is an Individual who is a Non-Resident living in Kuwait since birth and working there since 1997 and the salary income earned there was the source of income for all his investments in India. His only source of income in India during the year was from Interest Income, which was below the taxable limit. As such, return of income was not filed by him.
Notices u/s 147 and 142(1) of the Act issued were either went in spam or were not noticed by the assessee and hence were not replied accordingly.
A show cause notice dated 12th March, 2022 was received by the appellant to submit the explanation in respect of Interest Income of Rs.14,979/- and purchase of immovable property of Rs. 2,22,64,200/- during the relevant previous year. As per the said notice, he was asked to P a g e | 6
A.Y. 2016-17
Fakhruddin Bhura, Mumbai submit the reply by 14th March, 2022 i.e. within a short span of two days only. Thereafter, the appellant got in touch with the consultants in India. Since the time was very short and the details were required to be gathered, a request for adjournment was sought on 14th March, 2022
online, whereby an adjournment was sought up to 24th March,
2022.However, before the appellant could file his reply on 24th March,
2022, the assessment order u/s 147 r.w.s. 144 r.w.s. 144B of the Act was passed on 23rd March, 2022, ignoring the application for the adjournment. Under these circumstances, the assessment order so passed is erroneous, arbitrary, against the principal of natural justice and hence is void ab initio. The payment for the agreement value of flat was made over the period from the year 2011 and onwards till the possession of the flat. Thus, the entire purchase consideration of Rs.
2,22,79,179/- was not paid during the F.Y. 2015-16. The source of the fund for purchase of the said property was remittances made by the appellant from Kuwait over the period, from time to time. The Assessing officer based on the information received from the registration authorities erroneously considered the purchase consideration of Rs.
2,22,79,179/- as income of the appellant during the year. Thus, the addition so made is erroneous, arbitrary, unjustifiable, as well as bad in law.
P a g e | 7
A.Y. 2016-17
Fakhruddin Bhura, Mumbai
We have carefully considered the above facts. We find that the appeal was dismissed mainly on account of deficiency in terms of section 249(4) of the Act. We find that both the assessment order as well as the first appellate order for the under consideration were passed ex-parte qua the assessee. Based on the facts stated above, in our considered view, the assessee had a reasonable and sufficient cause for non- appearance before the ld. AO. We observe that the ld. CIT(A) has passed the impugned order even without admitting the appeal of the assessee and dismissed the appeal for the reason that the assessee failed to file the return of income and also not paid the advance tax invoking the provisions of section 249(4)(b) of the Act. It is seen that the impugned order has been passed by the ld. CIT(A) without providing proper opportunity of hearing to the assessee which, in our view, is against the principle of natural justice. It is the contention of the ld. AR that the assessee is not required to file the return of income; the income being below the taxable limit and hence he was also not liable to pay any advance tax. This fact was brought to the notice of the ld. CIT(A) in Form No. 35 filed before him. Therefore, the question of payment of advance tax did not arise. However, the appeal of the assessee was dismissed by him under the provisions of section 249(4)(b) of the Act. As regards merits of the case are concerned, we find some force in the P a g e | 8 A.Y. 2016-17
Fakhruddin Bhura, Mumbai arguments advanced by the ld. AR. Before us, he submitted that given an opportunity the assessee is in a position to substantiate his claim in respect of the impugned additions made by the AO by filing the requisite details/documentary evidence in support thereof.
9. Considering the totality of the facts and in the circumstances of the case enumerated above and there being no objection from the ld. DR for remanding the matter back to the file of the AO for fresh adjudication on merits, we deem it fit in the interest of justice and fair play to give an opportunity to the assessee to present his case and substantiate the claim before the AO. Accordingly, the impugned order of the ld. CIT(A) is set aside and without going into merits of the case, all relevant issues are restored to the file of the AO with a direction to decide the same afresh as per fact and law after affording adequate opportunity of hearing to the assessee who, in turn, is also directed to cooperate in the assessment proceedings without fail. He shall provide the requisite support in terms of submitting the relevant documents/evidence as may be required/called upon during the fresh proceedings before the AO. The order of the ld. CIT(A) is hereby set aside and the matter is restored back to the file of the AO for de-novo adjudication on merits. We direct and order accordingly.
P a g e | 9
A.Y. 2016-17
Fakhruddin Bhura, Mumbai
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 18/11/2025. NARENDER KUMAR CHOUDHRY PRABHASH SHANKAR (न्याययक सदस्य /JUDICIAL MEMBER) (लेखाकार सदस्य/ACCOUNTANT MEMBER)
Place: म ुंबई/Mumbai
ददनाुंक /Date 18.11.2025
Lubhna Shaikh / Steno
आदेश की प्रयियलयि अग्रेयिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt.