AAMNA ALTAFHUSSAIN SHARIFF ,MUMBAI vs. ITO WARD 16(1)(1), MUMBAI
Before: SHRI AMIT SHUKLA & SHRI GIRISH AGRAWALAssessment Year: 2014-15
Per : Amit Shukla, Judicial Member:
The aforesaid appeal has been filed by the assessee against order dated 26.11.2024 passed by NFAC, Delhi for the quantum of assessment passed under section 147 r.w.s. 144 of the Act for the assessment year 2014-15. The assessee is mainly aggrieved
Ms. Aamna Altafhussain Sharif
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by dismissal of the order by the Ld. CIT (A) by applying the provision of section 249(4)(b) of the Act.
At the outset, it is observed that the appeal of the Assessee is delayed by 97 days. In the petition for condonation of delay it has been stated that the order of the Ld. CIT (A) was passed and uploaded on the portal on 26.11.2014 and accordingly the last day of filing of appeal was 25.01.2025, however, the same was filed on 02.05.2025. Thus, there is a delay of 97 days. It has been stated that the Ld. CIT (A), without giving any notice that the appeal was not maintainable, has applied section 249(4)(b) of the Act. It has been further stated that the assessee was not aware of intricacies of income tax law or appellate proceedings and therefore was not aware of looking through the income tax portals for the orders and process of filing of appeal before the Tribunal. Apart from that, during the relevant period assessee suffered from a tragic loss of his mother and assessee was not receiving any professional work during this time leading to great financial hardship and emotional distress. It is in the month of March, 2025 the assessee approached one CA who visited the portal and found that the Ld. CIT (A)’s order was on the portal and then only he came to know that Ld. CI T(A) has passed the order against him on 26.11.2014 and assessee was advised to file an appeal before the Tribunal and accordingly the appeal was filed.
In view of the aforesaid circumstances that the order of the Ld. CIT(A) was communicated through ITBA portal which the Ms. Aamna Altafhussain Sharif
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assessee was not aware of and was also on emotional distress due to demise of his mother, therefore we are of the opinion that there was a reasonable and bonafide belief in filing the appeal belatedly. Accordingly, the delay is condoned.
The facts in brief are that the assessee has received professional fees amounting to Rs.10,33,712/- and had not filed his return of income. Accordingly, assessee’s case was selected for scrutiny under section 147 of the Act as a non-filer. During the course of assessment proceedings the assessee filed his bank account details, however, later on in response to notices assessee did not respond and assessment order was passed ex-parte. Based on individual transaction statement/AIR information that assessee was in receipt of professional fees amounting to Rs.10,33,712/- the entire amount was added to the total income. Apart from that there was further information that assessee had made credit card bill payment of Rs.12,78,903/- and the entire amount was treated as unexplained expenditure under section 69C of the Act. The AO thereafter has further estimated the turnover based on service tax return of Rs.29,85,696/-. Apart from that interest income has also been added. Thus, the addition of Rs.53,70,610/- was made under following heads:
Sr.No.
Nature of Addition
Amount (in Rs.)
(1)
Income by way of professional or technical fees (as discussed in para
5 above)
10,33,712/-
(2)
Unexplained expenditure of payment of credit card bills u/s.
69C of the I.T. Act, 1961 (as discussed in para 7 above)
12,78,903/-
Ms. Aamna Altafhussain Sharif
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(3)
Interest Income (as discussed in para 8 above)
72,300/-
(4)
Turnover reported in Service Tax
Return considered to be income of the asseseee (as discussed in para 9
above)
29,85,696/-
Total Assessed Income.... 53,70,611/-
Rounded off to......... 53,70,610/-
(As given in assessment order)
5. Against the said order the assessee filed appeal before the Ld. CIT (A), however, the Ld. CIT(A) invoked section 249(4)(b) of the Act holding that appeal of the assessee is not admitted because the assessee has not paid the taxes or advance tax.
Here in this case, the assessee has not filed the return of income.
Therefore, section 249(4)(b) of the Act does not apply. Under clause (b) where no return has been filed, assesse is required to pay the amount equal to the advance tax which was payable by him or an application should be made on behalf of the assessee to the Ld. CIT(A) showing/giving good and sufficient reason for admitting of the appeal. From the perusal of the assessment order it is seen that although it is an ex-parte order the AO has made addition not only on account of professional fee but also estimated the turnover based on service tax return and also expenditure incurred to credit card and also estimated turnover.
There is duplication of additions which has been made. The AO should have at least either estimated the professional income or estimated the net profit but cannot make various additions in the manner in which he has made. Now the Ld. CIT (A) should have at least given a show cause notice to the assessee to explain as to Ms. Aamna Altafhussain Sharif
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why the advance tax has not been paid and even the Ld. CIT(A) has not specified as to what was the amount on which advance tax should be paid. In these facts invocation of section 249 (4) (b) is not justified. Accordingly, in the interest of justice the matter is remanded back to the file of the Ld. CIT(A) to decide the issue afresh in accordance with law after giving proper opportunity of hearing to the assessee.
The assessee is also directed to cooperate in the proceedings before the Ld. CIT(A) and substantiate his case.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 26.06.2025. (GIRISH AGRAWAL) (AMIT SHUKLA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 26.06.2025. * Kishore, Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The DR Concerned Bench
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By Order
Asstt.