Loading judgment…
Facts
The assessee, an individual, derived income from salary and sale of property but did not file a return. The case was reopened under Section 147, and notices were issued. The Assessing Officer completed the assessment ex-parte. The CIT(A) dismissed the appeal for non-compliance with Section 249(4)(b) of the IT Act.
Held
The Tribunal held that the assessee was required to pay advance tax on the basis of admitted tax and not assessed tax. Considering the assessee's payment of self-assessment tax and reinvestment of sale consideration, no further advance tax was payable.
Key Issues
Whether the appeal is maintainable when the assessee has not filed a return but claims no tax is payable and has paid self-assessment tax and TDS. Whether Section 249(4)(b) compliance is on admitted tax or assessed tax.
Sections Cited
147, 148A, 148, 142(1), 144, 144B, 69, 249(4), 249(4)(b)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI R. K. PANDA & SHRI VINAY BHAMORE
Assessment Year : 2018-19 Sagar Jaywant Elawande, Vs. ITO, Ward-13(1), Pune. 457, Shaniwar Peth, Pune City, Pune- 411030. PAN : AAMPE1025B Appellant Respondent Assessee by : Shri Digambar Surwase Revenue by : Shri Arvind Desai Date of hearing : 26.03.2025 Date of pronouncement : 28.03.2025 आदेश / ORDER
PER VINAY BHAMORE, JM:
This appeal filed by the assessee is directed against the order dated 16.12.2024 passed by Ld. CIT(A)/NFAC for the assessment year 2018-19.
Facts of the case, in brief, are that the assessee is an individual and derived income from salary and also sold immovable property but return of income was not filed. On the basis of above information, the case was reopened u/s 147 and notices u/s 148A(b), 148 and 142(1) respectively were issued to the assessee. Since the assessee did not reply to any of the notices, Assessing Officer completed the assessment u/s 147 r.w.s. 144 r.w.s. 144B of the IT Act by determining total income of Rs.2,16,34,760/-. The above assessed income includes unexplained investments in purchase of immovable property to the tune of Rs.1,83,64,830/- u/s 69 and salary income of Rs.16,44,930/- and also an amount of Rs.16,25,000/- sale consideration received by the assessee.
After considering the reply of the assessee, Ld. CIT(A)/NFAC dismissed the appeal by observing as under :- “5. OBSERVATION AND DECISION: As it is seen that there is failure is on the part of the appellant to file the return or to furnish supportive documents. I have perused the written submissions of the appellant and also seen the material on record. The provisions of section 249(4) of the Act are as under:- [Section 249(4) No appeal under this chapter shall be admitted unless at the time of filing of the appeal- Where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or 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 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)] I observe that at the time of filing of appeal the appellant has not filed his return and not paid the tax. Hence, the case of the appellant comes under clause (b) of sub-section (4) of section 249 of the Act. The appellant has not complied with the above provisions of the Act and hence the appeal is not maintainable. Accordingly, the appeal is not admitted and the same is hereby dismissed in limine. In result, the present appeal is dismissed.”
4. It is this order against which the assessee is in appeal before this Tribunal.
Ld. AR appearing from the side of the assessee submitted before us that the order passed by Ld. CIT(A)/NFAC is unjustified. Ld. AR submitted before the Bench that the assessee was not liable to pay advance tax, since on his salary income TDS was already deducted which was appearing in Form 26AS, secondly no capital gain was arising on sale of immovable property, since he has invested the whole of the consideration in purchase of another property i.e. flat. Ld. AR further submitted before us that though no advance tax was payable by him, he prepared a computation of income to be submitted before Ld. CIT(A)/NFAC and according to that computation of income, a refund of Rs.1,54,830/- was due to the assessee, since he himself paid self-assessment tax of Rs.1,58,130/-. The above said computation is placed on page nos.178 to 181 of the paper book and the copy of self-assessment tax challans are also produced before the Bench on page nos.193 to 194 of the paper book. In support of its contentions, Ld. AR relied on following coordinate bench decisions :- (i) Hingora Ali Mohd. Vali Mohd. vs. ITO, ITA No.2143/PUN/2024.
(ii) Shri Pravin Sakharam Gulambe vs. ITO, (iii) Dilip Hirala Choudhari vs. ITO, ITA No.642/PUN/2024.
Accordingly, Ld. AR prayed before the bench to set-aside the order passed by Ld. CIT(A)/NFAC and further requested to direct the Ld. CIT(A)/NFAC to decide the appeal afresh on merits of the case, since as per the calculation of assessee no tax was remained to be payable instead refund was due to the assessee.
Ld. DR appearing from the side of the Revenue relied on the order passed by the subordinate authorities and requested to confirm the same.
We have heard Ld. Counsels from both the sides and perused the material available on record including the paper books filed by the assessee. In this regard, we find that Ld. CIT(A)/NFAC has dismissed the appeal of the assessee with reference to section 249(4)(b) of the IT Act. Ld. CIT(A)/NFAC was of the view that since the assessee has not furnished his income tax return he is required to pay advance tax on the income determined by the AO. And in the absence of payment of such advance tax, the appeal deserves to be dismissed. In this regard, we find that time and again it has been held by the Co-ordinate Benches of this Tribunal that before filing the appeal, the assessee is required to pay advance tax as per his calculation i.e. admitted tax and not on the basis of assessment made by the Assessing Officer. It was also the contention of Ld. AR that no tax is payable according to calculation of the assessee, instead there is refund due to the assessee, since he himself has paid Rs.1,58,130/- as self- assessment tax and apart from this self-assessment tax, TDS on salary deducted by the employer of the assessee is also appearing in Form 26AS. It was also contended by Ld. AR of the assessee that whole of the sale consideration received on immovable property was reinvested in purchase of residential flat, therefore no capital gain is arising to the assessee which could attract income tax on him. Considering the totality of the facts of the case, we find force in the arguments of the counsel of the assessee & accordingly hold, that in the light of section 249(4)(b) of the Act the assessee was required to pay advance tax on the basis of Admitted Tax & not on the basis of Assessed Tax. Therefore, under the above facts of the case the assessee was not required to pay any further tax in the name of advance tax or self-assessment tax more than that what has been already deposited by him. Accordingly, we deem it proper to set-aside the order passed by Ld. CIT(A)/NFAC & remand the matter back to him with a direction to decide the appeal afresh on merits of the case as per