ASSIFUDDIN MEHBOOB KHAN,MUMBAI vs. ITO WARD 41(2)(1), MUMBAI

4. On the facts and circumstances of the case and in law, the addition of the short- term capital gains of Rs. 54,99,950 as made by the Assessing Officer is required to be deleted since the impugned property was fully belonging to the brother of the appellant and he had declared the entire capital gain arising on its sale in his return of income.

9 Where no return has been filed by the appellant for the assessment No year, whether an amount equal to the amount of advance tax as per section 249(4)(b) of the Income-tax Act, 1961 has been paid Against sl. No. 9.1 of Form-35, payment of only an amount of Rs. 1,000/- is mentioned which is appeal fee only.

3.2. As per provisions of section 249(4)(b) of the Act, where no return has been filed by the assessee, the asseessee has to pay an amount equal to the amount of advance tax which was payable by him otherwise appeal shall not be admitted. The provisions of section 249 (4) of the Act are reproduced as under- Section 249(4)

"No appeal under this Chapter shall be admitted unless at the time of filling of the appeal Assifuddin Mehboob Khan (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or "(b) where no retum has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, 2 in a case falling under clause (b) and) on an application made by the appellant in this behalf, the Deputy Commissioner (Appeals)] or, as the case may be, the Commissioner (Appeals)) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of 5 that clause].] 3.3 As per provisions of section 234B(1), read with provisions of section 208 of the Act, the liability to pay advance tax, in a case where returned income is less than the assessed income, is calculated on the basis of assessed income. The provisions of section 2348(1) and provisions of section 208 of the Act are reproduced below - Section 234B(1)

"(1) Subject to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of two per cent for every month or part of a month comprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub-section (1) of section 1434 and where a regular assessment is made, to the date of such regular assessment, on an amount]] equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. 5 Explanation 1-In this section," assessed tax" means,- (a) for the purposes of computing the interest payable under section 140A, the tax on the total income as declared in the return referred to in that section; (b) in any other case, the tax on the total income determined under sub-section (1) of section 143 or on regular assessment, as reduced by the amount of tax deducted or collected at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or collection and which is taken into account in computing such total income.] Explanation 2.- Where in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of Assifuddin Mehboob Khan this section. Explanation 3.- In Explanation 1 and in sub- section (3)." tax on the total income determined under sub- section (1) of section 143" shall not include the additional income-tax, if any, payable under section 143.]”

3.4. Section 208 "208. Conditions of liability to pay advance tax Advance tax shall be payable during a financial year in every case where the amount of such tax payable by the assessee during that year, as computed in accordance with the provisions of this Chapter, is one thousand five hundred rupees or more.

3.5. In Form-35, the appellant has offered 'No' comments at sl. No. 9 of Form-35 whereas it was supposed to make payment of tax equal to the amount of advance tax payable on its income which in the present case is the income assessed by the AO as no ITR was filed by it. It is, therefore, clear that the appellant has not made payment of amount equal to the advance tax which was due on its income The appellant has also not requested for exemption from operation of the provisions of clause (b) of sub-section (4) of section 249 of the Act.

4 Since the appellant has not filed ITR as well as not paid an amount equal to the amount of advance tax which was payable by it, present appeal is not liable to be admitted. The appeal is infructuous and is, therefore, dismissed.

5. The appeal is dismissed.”

3. We heard the parties and perused the material on record. The ld. AR submitted that the return filed by the assessee on 20.01.2024 has not been considered by the lower authorities and the CIT(A) has dismissed the appeal stating that the appeal is not in accordance with the provisions of section 249(4)(b) of the Act. The ld. DR on other hand submitted that the AO has specifically recorded a finding that the assessee has not filed the return in response to notice u/s. 148 and therefore the return now brought to the attention of the Bench cannot be considered. From the perusal of the return filed by the assessee on 20.01,2024, we notice that the assessee has filed the said return declaring NIL income. We further notice that the CIT(A) while dismissing the appeal on the ground that there Assifuddin Mehboob Khan is violation u/s.249(4), has not considered the above return where no tax is due since there is no income. During the course of hearing the ld AR pleaded that the appeal may be remitted back to the CIT(A) to be considered on merits in the light of the status of the return filed by the assessee. Considering the facts and circumstances unique to the facts in the present case the interest of natural justice and fair play, we are remitting the appeal back to the CIT(A) for a denovo consideration on merits by calling for relevant details to consider the appeal on merits. The assessee is directed to submit the relevant details as may be called for by the CIT(A) and co-operate with the appellate proceedings. It is ordered accordingly.