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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-2’, NEW DELHI
Before: SH. N. K. BILLAIYA
This appeal by the assessee is preferred against the order of the CIT(A)-1, Noida dated 29.10.2018 pertaining to A.Y. 2010-11.
The substantive grievance of the assessee read as under :- 1. The Commissioner of Income Tax (Appeals)-l, Noida ["CIT (A)"] invoked the provisions of Section 249(4)(b) and decided that the appeal is not competent to be admitted. The decision of the CIT (A) of non-admission is contrary to facts and law and therefore, his order of not admitting the appeal is liable to be set aside.
2. The CIT (A) on account of not admitting the appeal, did not decided any ground on merit, which is unlawful and therefore, the order of the CIT(A) is liable to be set aside.
Reasons recorded u/s 148 for re-assessment were not provided to the /appellant before the completion of six years from the end of the relevant Assessment Year and therefore, the re-assessment proceedings are contrary to facts and to law and therefore, the re- assessment framed on such unlawful proceedings is liable to be quashed. 4. AIR information regarding cash deposit of Rs.43,61,300/-in Saving Bank Account during Financial Year 2009-10 relevant to Assessment Year 2010- 11 could not lead to be a "Reason to believe" u/s 148(2) for escapement of income from taxation and therefore, the requirement of provisions of reassessment being not fulfilled, the notice issued u/s 148 for re-assessment is unlawful and consequently, the re-assessment order framed on the basis of such notice is unlawful and is liable to be quashed. 5. The addition of Rs.43,61,300/- on account of cash deposit in bank account is contrary to facts since the assessee had deposited as well as withdrawn cash from bank account and therefore, the addition of Rs.43,61,300/- is unlawful and is liable to be deleted. 6. The appellant craves leave to add or amend any of the ground of appeal.
3. At the very outset counsel for the assessee stated that the CIT(A) dismissed the appeal of the assessee as not maintainable by invoking the provisions of section 249 (4)(b) of the Act.
4. It is the say of the counsel that the income of the assessee was below the taxable limit and, therefore, the assessee was under no obligation to pay advance tax as per the provisions of the law. The counsel concluded by saying that the CIT(A) and to have decided the appeal on merits of the case.
5. Per contra the DR strongly supported the findings of the CIT(A).
6. I have carefully perused the order of the first appellate authority qua the issues. I find that the CIT(A) has dismissed the appeal invoking the provisions of section 249 (4) (b) of the Act holding as under :-
“However, this issue can be considered only when the appeal of the appellant is a competent one and based upon that is admitted by this office. The Ld. Counsel for the appellant in course of hearing on 04.10.2018 sought time to file application u/s 249(4)(b) of I.T. Act, 1961 but thereafter chose not to file that application and not to seek grant of an exemption from the mischief of Section 249(4}(b) which in any case is not available as a matter of right and is discretionary relief to be granted by the Commissioner (Appeals) for good and sufficient reasons and therefore the mischief of Section 249(4)(b) would operate against the appellant in all its might. Therefore, because of the non-compliance of the provisions of Section 249(4)'(b) of I.T. Act, 1961; the appeal of the appellant is not competent to be admitted and therefore, none of these issues can be adjudicated in the present appeal. Present appeal cannot be admitted for want of jurisdiction. The impugned assessment order is therefore, confirmed. The appeal of the appellant fails and is dismissed.”
In my considered opinion once the assessee alleged that his income is not taxable during the provisions of the Act there cannot be any obligation upon the assessee to pay advance tax. My view is fortified by the affidavit of the assessee filed before me. I find that the first appellate authority has not decided the appeal on merits of the case, therefore, in the interest of justice and fair play I deem it fit to restore the appeal to the files of the CIT(A). The CIT(A) is directed to decide the appeal afresh on the grounds raised before him after affording a reasonable and fair opportunity of being heard to the assessee.
In the result, the appeal filed by the assessee is treated as allowed for statistical purpose.
Order pronounced in the open court on 13.03.2020.