OONA SINGH ,NOIDA vs. DCIT, CIRCLE- 2, NOIDA

In various grounds of appeal, the assessee has challenged the validity of reopening on jurisdiction as well as on merits of the additions on the primary issue that ld. CIT (A) has erred in invoking the provisions of section 249(4)(b) holding that the appeal of the assessee is not maintainable because assessee had not filed his original return of income u/s 139(1) & 139(4) or under the requisitions of the AO in compliance of notice u/s 148 or 142(1), therefore, in terms of provisions of section 249(4)(b) would apply to the present appeal and for the appeal to become eligible for getting admitted it would be a mandatory statutory requirement on the part of the assessee to deposit equal amount of the advance tax payable by the assessee. According to him, the assessee has not paid any advance tax in terms of provisions of sections 208 & 209 of the Act and, therefore, he has dismissed the appeal in limine holding that the appeal cannot be admitted for want of jurisdiction.

Ld. DR for the Revenue admitted that if the return has been filed by the assessee and has paid the admitted tax as shown in the return of income, then the matter can be restored back to the file of the ld. CIT (A) to be decided afresh on merits.

On perusal of the impugned order, we find that firstly, ld. CIT (A) has in para 2 noted that none appears during the appellate proceedings even after serving of notice whereas in the cause title of his appellate order, the presence of Shri R.K. Gupta, FCA is recorded. Therefore, he proceeded on the assumption that assessee has not filed any return of income u/s 139(1)/139(4)/148 which is clear from para 10 of his order which reads as under :- “10. Admittedly, in the instant case the appellant has not filed the return of income either on its own under the provisions of section 139(1) or 139(4) of I.T. Act, 1961 or under the requisitions of the Ld. A.O. under section 148 or 142(1) of I.T. Act, 1961 and therefore, the provisions of Section 249(4) of I.T. Act, 1961 would apply to the present appeal and for the appeal to become eligible for getting admitted it would be a mandatory statutory requirement on the part of the appellant to deposit an amount equal to the advance tax payable by appellant.”

Thereafter, he written his comments on various sections and admissibility of the appeal in terms of scope of section 249 and held that appeal of the assessee cannot be admitted for want of jurisdiction. Such a finding is de hors the material placed on record. Firstly, nowhere the AO has held that the assessee has not filed any return of income originally or in pursuance of section 148. Secondly, in the statement of facts in Form 35, the assessee has clearly submitted that it has filed return of income. If the ld. CIT(A) has any doubt at least he should have clarified it from the assessee by giving a specific notice of query. Now, before us, ld. counsel has produced photocopy of income-tax return filed originally on 04.12.2009 for the impugned assessment year and also gave the details of taxes paid on the returned income. Thus, the findings of the ld. CIT (A) holding the appeal not admissible u/s 249(4)(b), is found to be incorrect. Accordingly, since ld. CIT (A) has not decided the appeal on merits, therefore, we remand back all the issues and grounds raised before us before the ld. CIT (A) to be decided on merits in accordance with law after giving due and effective opportunity of being heard to the assessee. Consequently, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 23rd day of December, 2021.