HARSHVARDHAN MANAGEMENT & CONSULTANTS PVT LTD,MUMBAI vs. INCOME TAX OFFICER WARD 10(1)(1), MUMBAI

As per the Ld. CIT(A), the assessee has not filed return of income in response to notice u/s. 148 of the Act as well as has not paid an amount equivalent to amount of advance tax which was payable and, therefore, the appeal filed by the assessee was held not maintainable in light of section 249(4) and the same was dismissed in limine. Against the said order, the assessee is in appeal before us.

During the course of hearing, the Ld.AR submitted that the findings of the Ld.CIT(A) that the assessee has not filed return of income in response to notice u/s. 148 of the Act is factually incorrect and in this regard, our reference was drawn to the assessee‟s Paper Book (Pg.19), wherein the assessee has enclosed a copy of its return of income filed on 31-01-2023 in response to notice u/s. 148 of the Act. It was submitted that the said fact was also brought to the notice of the AO vide assessee‟s submissions of even date, wherein the assessee has enclosed a copy of the return of income as well as has responded to other queries raised by the AO. It was accordingly submitted that the findings of the Ld.CIT(A) that the assessee has not filed return of income in response to notice u/s. 148 of the Act is not correct. It was further submitted that in view of the same, there is no violation of provisions of section 249(4) of the Act since the assessee has filed return of income and has paid due taxes while filing the return of income. Hence, the appeal is clearly maintainable and, therefore, the Ld.CIT(A) has erred in dismissing the appeal of the assessee.

It was further submitted that even the AO has not taken into cognizance, the return of income so filed by the assessee in response to notice u/s. 148 in spite of the fact that the assessee has duly brought the 3 said fact to the notice of the AO as a part of its submissions dt. 31-01- 2023 in response to show cause. It was accordingly submitted that the given the facts and circumstances of the case, the matter may be remitted to the file of the AO for necessary verification and examination as the assessment order has also been passed ex-parte by the assessee, without taking into consideration the return of income filed in response to section 148 of the Act.

The Ld. DR is heard, who has not raised any objection where the matter is remitted to the file of the AO.

After hearing both the sides and considering the material available on record, we find that the assessee has duly demonstrated that it has filed return of income in response to notice u/s. 148 of the Act. The said return of income has not been taken into consideration either by the AO or by the Ld.CIT(A), which has resulted in dismissal of the appeal by the Ld.CIT(A). Therefore, considering the facts and circumstances of the case, we deem it appropriate to remit the matter to the file of the AO to decide the same afresh, after providing reasonable opportunity to the assessee.

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