SWATI VASANTRAO BAVISKAR,THANE vs. ITO, WARD 7(1), PUNE, PUNE
What did the Tribunal hold?
The Tribunal held that Section 249(4) of the Act, which requires payment of tax before filing an appeal, should be liberally construed to uphold the assessee's right to appeal. The Ld. CIT(A) erred in dismissing the appeal in limine on this ground.
What were the facts?
The assessee, a housewife, did not file a return of income for AY 2016-17, believing no tax was payable. A notice under Section 148 was issued alleging sale of a flat for Rs. 74,91,000/-. The Ld. CIT(A) dismissed the assessee's appeal for failing to pay advance tax.
What were the issues?
Whether the Ld. CIT(A) was justified in dismissing the appeal for non-payment of advance tax when the tax liability itself was disputed. Whether Section 249(4) should be interpreted strictly or liberally in the context of the right to appeal.
Which sections of the Income-tax Act were involved?
Section 147,Section 144,Section 144B,Section 250,Section 249(4),Section 246
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI PAVAN KUMAR GADALE & SHRI Dr. DIPAK P. RIPOTE
आदेश /ORDER
PER Dr. DIPAK P. RIPOTE, A.M : This is an appeal filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals), NFAC, Delhi [Ld.CIT(A)], passed u/s. 250 of the Income Tax Act, 1961 (‘the Act’) for AY 2016-17, emanating from the Assessment Order u/s 147 r.w.s. 144 r.w.s. 144B of the Act, dated 05.02.2024.
There was a delay of 83 days in filing of the appeal before this Tribunal. The assessee filed an affidavit explaining the reasons for delay. We have perused the affidavit and convinced that there was sufficient cause for delay. Substantial justice is more important than procedural delay. No assessee is going to
ITA No. 1348/PUN/2026 gain by filing the appeal belatedly. Accordingly, delay condoned.
Findings and analysis:
We have heard both the parties and perused the records. In this case, the Ld. CIT(A) has dismissed the appeal of the assessee alleging that the assessee has not paid advance tax which was required to be paid on the assessed income. The Ld. AR submitted that the assessee had not filed return of income and according to the assessee no tax was payable. The assessee is a house wife. Notice u/s 148 was issued for AY 2016-17 alleging that the assessee had sold a flat for Rs.74,91,000/-. The Ld. AR further submitted that the flat sold was in joint name with her husband. The Ld. AR submitted that the assessee had purchased a new house property again in joint name with her husband. The Ld. AR submitted that entire transactions had been shown by the assessee’s husband in his return of income. In this case, the Ld. CIT(A) has dismissed the appeal of the assessee as the assessee had not paid the advance tax on assessed income which according to the Ld. CIT(A) was required to be paid u/s 249(4) of the Act.
The Hon'ble Karnataka High Court in the case of T. Govindappa Setty Vs. ITO [1998] 231 ITR 892(KAR) held as under: Quote "I am of the opinion that the view taken by the second respondent that the appeals filed by the petitioner cannot be admitted since the petitioner had failed to pay the tax due on income shown by him in the return filed by him is erroneous in law. Sub-section (4) of section 249 has to be construed in the backdrop of the right to appeal provided to an assessee under section 246 of the Act. Under these circumstances, while interpreting sub-section (4) of section 249 of the Act, the court will have to keep in mind the object of sub-section (4) of section 249 of the Act and also the right to prefer an appeal
ITA No. 1348/PUN/2026
guaranteed to an assessee. In that view of the matter, sub-section (4) has to be liberally construed to serve the object of the right of appeal provided to an assessee, and not with a view to deprive the right provided to an assessee to prefer an appeal. When the very liability is disputed by the petitioner on the ground that the petitioner could not have been assessed as an Hindu undivided family as on the date of filing of the return and on the date of the assessment there was no Hindu undivided family in existence, the right guaranteed to the petitioner to prefer an appeal cannot be deprived by taking the view that the petitioner has failed to pay the tax due on the income shown in the return filed. Therefore, I am of the view that the order annexure "H" passed by the second respondent is liable to be quashed.” Unquote.
4.1 Thus, as held by the Hon'ble High Court of Karnataka, the section 249(4) has to be interpreted in such a way keeping in mind the assessee's right to file an appeal. The objective of section 249(4) is to ensure that undisputed tax liability is paid by assessee before filing appeal. Therefore, respectfully following the Hon'ble High Court of Karnataka (supra), we are of the considered opinion that Ld. CIT(A) has erred in dismissing the appeal of the assessee in limine. Accordingly, we set-aside the appeal of the assessee to Ld. CIT(A) for de-novo adjudication on merits of the case. The Ld. CIT(A) shall provide opportunity to the assessee. Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.
In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open Court on 21st July, 2026
Sd/- Sd/- (PAVAN KUMAR GADALE) (Dr. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे/Pune; दिन ांक/Dated : 21-07-2026 Ravi Kumar
ITA No. 1348/PUN/2026
आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent 3. The concerned Pr. CIT, Pune 4. DR, ITAT, ‘B’ Bench, Pune 5. ग र्ड फ ईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अदिकरण,पुणे / ITAT, Pune
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