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Facts
The assessee filed an appeal against the order of the CIT(A) which dismissed the appeal for non-payment of advance tax. The CIT(A) dismissed the appeal on the ground that the assessee had not paid advance tax, making the appeal non-maintainable as per Section 249(4)(b) of the Income Tax Act.
Held
The Tribunal held that the assessee, being a senior citizen born in 1941, was exempt from paying advance tax under Section 207(2)(b) of the Act. Therefore, the CIT(A) erred in dismissing the appeal as not maintainable.
Key Issues
Whether the appeal was maintainable when the assessee, being a senior citizen, was not liable to pay advance tax as per Section 207(2)(b) of the Act.
Sections Cited
250, 144, 147, 249(4)(b), 207(2), 48, 148, 131, 208, 219
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “SMC” :: PUNE
Before: MS.ASTHA CHANDRA & DR.DIPAK P. RIPOTE
Assessment Year: 2013-14 Rama Damu Bhagat, V The Income Tax Officer, Room NO.4, Yashoganga s Ward-1, Panvel. CHG, Tilak Road, Panvel – 410206. Maharashtra. PAN: BICPB8875P Appellant/ Assessee Respondent / Revenue Assessee by CA Ajinkya Vaishampayan(Virtual Hearing) Revenue by Shri Sandeep Sathe – JCIT(DR) Date of hearing 08/10/2025 Date of pronouncement 31/10/2025 आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the assessee against the order of ld.Commissioner of Income Tax Appeal(NFAC) passed under section 250 of the Income Tax Act, 1961 for A.Y.2013-14 dated 25.09.2023 emanating from the Assessment Order under section 144 r.w.s 147 of the Income Tax Act, 1961 dated 14.11.2019. The Grounds of appeal raised by the Assessee are as under :
The Assessee requests to condone the unintentional delay of 22 months in filing the appeal in light of the facts undertaken in the affidavit enclosed and admit the same for disposal on merits.
2) The Ld. and Hon'ble CIT(A)-NFAC erred in dismissing, by not admitting, the appeal for non-fulfillment of condition prescribed u/s 249(4)(b) for payment of advance tax.
3) The Ld. and Hon'ble CIT(A)-NAFC erred in not appreciating provisions of section 207(2) and did not appreciate the facts that: - a) The disputed income does not fall under the head Income from Profits and Gains of Business or Profession', and b) The Assesee was a senior citizen, above 60 years of age during the previous year, and c) The disputed income was not chargeable to tax in A.Y. 2013-14 in absence of transfer.
4) The Ld. Assessing Officer erred in assessing income at Rs.44,02,290/-.
5) The Ld. Assessing Officer erred in determining the income as Long- Term Capital Gains at Rs. 44,02,290/- without appreciating that: - a) The possession of the subject matter land was not transferred by the assessee during A.Y. 2013-14, and b) The type of agreement entered into by the assessee with 6 others and the purchaser was "Agreement to Sale wherein terms and consideration were agreed and it was not amounting to final sale/transfer, and c) The Assessee with 6 others filed a suit against the purchaser for non-performance of the agreement to sale and subsequent sale deed (entered into A.Y. 2014-15) for the reason of non- payment of consideration.
6) The Ld. Assessing Officer erred in not allowing indexed cost of acquisition and bringing to tax the full value of consideration, thereby not following the provisions u/s 48 of the act. The Assessee craves leave to add, alter, amend or delete any of the grounds of appeal.”
Findings and Analysis : 2. We have heard both the parties and perused the records.
2.1 In this case the assessee is an individual and not filed the Return of Income for AY 2013-14. The Assessing Officer based on the information received from ITO(I & C) issued notice u/s 148 through ITBA portal on 10/01/2019. The notice u/s 148 was also send through speed post. The assessee did not file Return of Income. No submission was made by the Assessee during the Assessment proceedings. The AO noted in the Assessment order that the Assessee along with CO-Owners have sold land on 22/02/2013. The AO passed an order u/s 144 r.w.s 147 assessing total income at Rs.44,02,285/-.
Aggrieved by the Assessment Order, the Assessee filed appeal before the ld.Commissioner of Income Tax(Appeal) in Form No.35.
3.1 In Form No.35, it has been mentioned by the assessee that during the year there was only an Agreement to Sale (sathekarar) and no actual sale. The assessee further mentioned that the Sale took place in subsequent year hence No income accrues to assessee during AY 2013-14. Assessee also submitted in Form 35 that the cost of acquisition has not been considered by the AO.
3.2 However, Ld.CIT(A) vide order dated 25/09/2023 dismissed the appeal on the ground that Assessee has not paid any advance tax, hence as per section 249(4)(b) of the Act, appeal is not maintainable.
Aggrieved by the Order of the Ld.CIT(A), the assessee filed appeal before this Tribunal.
Ld.AR submitted that the Assessee is a Super Senior Citizen aged 85 years. Ld.AR filed copy of Assessee’s Aadhar Card which shows Date of Birth as “23.12.1941”. Ld.AR further submitted that Assessee was not liable to pay any Advance Tax during the year. Ld.AR invited our attention to Section 207(2)(b) of the Act. Ld.AR further submitted that the Actual Sale of the Land took place in next Assessment Year i.e. 2014-15 and Assessee has paid the tax on it.
Ld.Departmental Representative(ld.DR) for the Revenue accepted the contention that Assessee being Senior Citizen was not required to pay any Advance Tax.
In this case, ld.CIT(A) has dismissed the appeal as not- maintainable. Section 207(2)(b) of the Act is reproduced here as under : “[Liability for payment of advance tax. 207. [(1)] Tax shall be payable in advance during any financial year, in accordance with the provisions of sections 208 to 219 (both inclusive), in respect of the total income of the assessee which would be chargeable to tax for the assessment year immediately following that financial year, such income being hereafter in this Chapter referred to as "current income".] [(2) The provisions of sub-section (1) shall not apply to an individual resident in India, who— (a) does not have any income chargeable under the head "Profits and gains of business or profession"; and (b) is of the age of sixty years or more at any time during the previous year.]” 7.1 Thus, as per Section 207(2)(b) of the Act, for the Individual who is above the age of 60 years provisions of Section 207(1) are not applicable. In this case, Assessee is born in 1941. Therefore, at 7.2 Therefore, ld.CIT(A) has erred in dismissing the appeal as not- maintainable on the ground that Assessee has not paid advance tax.
Therefore, we set-aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity to the Assessee. The Hon’ble Bombay High Court in the case of Sahebrao Deshmukh Co.op Bank Limited Vs. ACIT 455 ITR 92(Bom) vide order dated 10.02.2023 has held as under : Quote.“18. The matter is now remanded back to the Assessing Officer, who shall provide the Petitioner with the satisfaction note of the Principal Commissioner of Income Tax, granting approval for issuance of Notice under section 148 of the Act, the appraisal report from DDIT (Inv), and bank statements of M/S Sanyam Gems Pvt. Ltd., the statement of Shri Shripal Vora at Bhavnagar, recorded under section 131 of the Act, and all other documents and material, which form the basis of the reasons recorded by the Assessing Officer for issuing notice under section 148 of the Act. After furnishing all these documents to the Petitioner, the Assessing Officer shall comply with the specific directions laid down by this Court in paragraph 8 in Tata Capital Financial Services Ltd. (supra), and after giving an opportunity of hearing to the Petitioner, shall proceed to pass its orders.” Unquote.
Respectfully following Hon’ble Bombay High Court(supra), we direct the ld.CIT(A) to provide copies of reasons recorded by the 6 Assessing Officer before issuing notice u/s.148 of the Act, and copy of the approval along with copy of the information received by the Assessing Officer to the Assessee. The Assessee shall file necessary documents before the ld.CIT(A). Accordingly, grounds of appeal raised by the Assessee are allowed for statistical purpose.
Delay : 10. There was delay of 649 days in filing of appeal before this Tribunal. Assessee filed an Affidavit along with Medical Certificate. We have perused the Affidavit and Medical Certificate. Assessee is a Senior Citizen 85 years old and suffering from physical disability as mentioned in the Medical Certificate. Therefore, we are convinced that there was sufficient and reasonable cause for delay. Hence, the Delay is condoned.
In the result, appeal of the Assessee is allowed for statistical purpose. Order pronounced in the open Court on 31 October, 2025.