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Facts
The assessee, a cooperative credit society, failed to furnish its return of income. Based on information of a large deposit, the Assessing Officer completed the assessment ex-parte under Section 144 of the IT Act. The assessee claimed deductions under Chapter VI-A, but these were not allowed.
Held
The Tribunal held that the Ld. CIT(A)/NFAC wrongly dismissed the appeal on the ground of non-payment of advance tax without adjudicating on merits. The assessee has the right to determine its advance tax liability, and if none exists, the appeal should be admitted.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal as infructuous solely on the ground of non-payment of advance tax without considering the merits of the case and the assessee's claim of no advance tax liability.
Sections Cited
148A, 148, 142(1), 144, 69A, 115BBE, 249(4)(b), 80P(2)(a)(i), 80P(2)(d)
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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI MANISH BORAD & SHRI VINAY BHAMORE
Assessment Year : 2014-15 Sahyogh Nagri Sahkari Vs. ITO, Ward-1, Jalna. Patsanstha Maryadit, 17/85, Juna Monda Mahesh Nagar, Ambad, Dist. Jalna-431203. PAN : ABMFS8514J Appellant Respondent Assessee by : Shri Prateek Jha Revenue by : Shri Arvind Desai Date of hearing : 04.03.2025 Date of pronouncement : 23.05.2025 आदेश / ORDER
PER VINAY BHAMORE, JM:
This appeal filed by the assessee is directed against the order dated 26.11.2024 passed by Ld. CIT(A)/NFAC for the assessment year 2014-15.
Facts of the case, in brief, are that the assessee is a cooperative credit society and has not furnished its return of income for the period under consideration. On the basis of information available with the Department, it was noticed that the assessee has deposited Rs.1,45,39,000/- in the bank account maintained with Chickly Urban Co-operative Bank Ltd. Accordingly, the order u/s 148A(d) of the IT Act was passed after deciding the objection filed by the assessee. After reopening the case, notice u/s 148 and 142(1) were issued respectively. In reply to the notice u/s 148, the assessee furnished return of income belatedly declaring Nil income after claiming deduction under Chapter VI-A. Since the assessee did not furnished any reply to the above notices, assessment was completed u/s 144 of the IT Act and an income of Rs.1,45,39,000/- was determined. The above assessed income includes addition made on account of unexplained money u/s 69A r.w.s. 115BBE of the IT Act.
Since the appellant has offered no comments at serial no.9 of From 35 and appellant failed to make payment of amount equal to the advance tax which was due on its income and the appellant also did not requested for exemption u/s 249(b) of the IT Act, Ld. CIT(A)/NFAC dismissed the appeal as infructuous without admitting the same for adjudication. It is this order against which the assessee is in appeal before the Tribunal.
We have heard Ld. Counsels from both the sides and perused the material available on record. We find that Ld. CIT(A)/NFAC dismissed the appeal of the assessee, without admitting the same for adjudication, on the sole ground of non-payment of advance tax in accordance with section 249(4)(b) of the IT Act. In this regard, we are of the considered opinion that the advance tax if any payable as per section 249(4)(b) of the IT Act is to be determined at the behest of the assessee. If there is no advance tax liability according to the assessee, then he need not to deposit the same & Ld. CIT(A)/NFAC is required to admit the appeal of the assessee in such an event. In the instant case, it is the claim of the assessee that since the assessee remained absent the assessment order was passed ex-parte & whatever deductions were legally available to the assessee were not allowed by the Assessing Officer. It is the contention of the assessee that being cooperative society the business income of the assessee was subject to deduction 80P(2)(a)(i) and 80P(2)(d) of the IT Act and due to ex-parte order the same deductions were not allowed which resulted in determination of unnecessary taxable income in the hands of the assessee. We find that the appeal of the assessee was dismissed in a summery manner without admitting the same for adjudication on merits of the case. It was the observation of Ld. CIT(A)/NFAC that the assessee was required to deposit advance tax in the light of section 249(4)(b) of the IT Act & when the assessee was issued show cause to explain this point he did not chose to file any application to exempt him from payment of advance tax in the light of the fact that no advance tax is payable by him. In this regard, we find support from the decisions passed by Co-ordinate Bench of the Tribunal in the case of Dilip Hiralal Chaudhari vs. ITO in order dated 05.06.2024 and in the case of Vishnusharan Chandravanshi vs. ITO in order dated 10.04.2024 and also from the judgement passed by Hon’ble Karnataka High Court in the case of Govidappa Setty vs. ITO, 232 ITR 892 (Karnataka) wherein under similar circumstances the appeal of the assessee was allowed. Accordingly, considering the totality of the facts of the case and without going into merits of the case, we deem it appropriate to set-aside the order passed by Ld. CIT(A)/NFAC and remand the matter back to him with a direction to admit the appeal of the assessee & adjudicate the same on merits of the case after providing reasonable opportunity of hearing to the assessee. The assessee is also hereby directed to respond to the notices issued by Ld. CIT(A)/NFAC and submit the requisite details on the appointed date without seeking any adjournment under any pretext, failing which Ld. CIT(A)/NFAC is at liberty to pass appropriate order as