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Facts
The assessee filed an appeal against the order of the CIT(A) who dismissed the appeal on the grounds that advance tax was not paid as stipulated. The CIT(A) invoked section 249(4)(b) of the Income Tax Act, which applies when no return of income is filed.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal under section 249(4)(b) as the assessee had filed a return of income in response to a notice under section 148, and the AO had considered this return valid. The CIT(A) should have invoked section 249(4)(a).
Key Issues
Whether the dismissal of appeal by the CIT(A) under section 249(4)(b) is justified when the assessee has filed a return of income in response to a notice under section 148.
Sections Cited
250, 249(4), 249(4)(b), 249(4)(a), 148, 234B, 271(1)(c), 271F
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “SMC” :: PUNE
Before: DR.DIPAK P. RIPOTE & SHRI VINAY BHAMORE
ORDER PER DR. DIPAK P. RIPOTE, AM: Thisappeal filed by the assessee is against the order of ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250of the Income Tax Act, 1961; dated 28.12.2024for Assessment Year 2016-17. The assessee has raised the following grounds of appeal :
1. 1. The order passed under section 250 of the Act by Learned Commissioner of Income Tax (Appeals), National Faceless Appeal [A] Centre (NFAC), Income Tax Department is erroneous both on facts and in law 2. The Ld. CIT(A) erred in not providing reasonable opportunity of being heard to the appellant before completing appellate proceedings.
The Ld. CIT(A) erred in dismissing the appeal by invoking section 249(4) of the Act without appreciating the fact that the 3 appellant has paid tax on the admitted income before filing appeal and has no liability to pay tax on the alleged income added by the assessing officer.
The Ld. CIT(A) erred in not considering the fact that the AO has considered the return as valid and has taken retumed income as base for calculation of Assessed income. The AO has not rejected the return of Income filed in response to the u/s. 148 of the Act.
The Ld. CIT(A) erred in upholding the addition of 29,46,791/- as short-term capital gain to the Income of the appellant without appreciating the additional evidence submitted in support of the same.
6. The Ld. CIT(A) has failed to appreciate that the AO erred in incorrectly calculating the short-term capital gains of Rs. 29,46,791/- by taking the incorrect purchase value of Rs.28,71,496/- and incorrect sale value of Rs.58,18,287/-.
The Ld. CIT(A) has failed to appreciate that the AO has erred in reopening the assessment u/s. 148 of the Act.
The Ld. CIT(A) has failed to appreciate that the notice issued 8 U/s 148 and proceedings U/s 148A are without jurisdiction and are void.
The AO erred in initiating penalty proceedings u/s.271(1)(c) and 271F of the Act.” Submission of ld.Authorised Representative(ld.AR) : 2. The ld.Authorised Representative(ld.AR) for the Assessee submitted that Assessee had filed return of income in response to notice under section 148 of the Act. The Assessing Officer had considered this return of income as is evident from the Computation [A] of Income made in the assessment order, which starts with Income as per Return under section 148 of the Act. Therefore, ld.CIT(A) has erred in dismissing the appeal.
Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC].
Findings & Analysis : 4. We have heard both the parties and perused the records. In this case, ld.CIT(A) has dismissed the appeal of the assessee on the ground that assessee has not paid advance tax as stipulated u/sec.249(4)(b) r.w.s. 234B of the Act. However, it is observed that ld.CIT(A) has invoked sub-clause “b” of section 249(4), which applies to the assessee who has not filed the Return of Income. For ready reference, Section 249(4) is reproduced here as under : “249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October, 1998 64[or to the Joint Commissioner (Appeals) on or after the 1st day of April, 2023,] irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of,— …………………….. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,— (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or [A] (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the 65[Joint Commissioner (Appeals) or the] Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.”
5. In this case, on perusal of the assessment order, it is observed that assessee had filed Return of Income in response to Notice section 148 of the Act. In the assessment order, the Assessing Officer has considered the said Return of Income as valid Return of Income. The Computation of Income appearing in the assessment order starts with “Income as per Return of Income filed u/s 148”. Thus, Assessing Officer has relied on the Return of Income filed u/sec.148 of the Act. The assessee has paid the taxes as mentioned in the Return of Income filed u/s.148 of the Act. In these facts and circumstances of the case, ld.CIT(A) should have invoked Section 249(4)(a) of the Act. Therefore, the order of ld.CIT(A) is erroneous. Accordingly, we set-aside the order of ld.CIT(A) to ld.CIT(A) to decide the grounds of appeal raised by the assessee on merits. Assessee shall file all the necessary details before the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.
ITA No.514/PUN/2025 [A]
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 23rd April, 2025.