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Income Tax Appellate Tribunal, DELHI BENCH, ‘SMC’ NEW DELHI
आदेश / ORDER PER SUSHMA CHOWLA, JM: The present appeal filed by assessee is against the order of CIT(A)-I, Noida, dated 28/09/2018, relating to Assessment Year 2010-11 against order passed under section 147 r.w.s. 144 of the Income Tax Act, 1961 (in short ‘the Act’).
The assessee has raised following grounds of appeal:-
आयकर अपील सं. / ITA No. 1401/Del/2019
“That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not admitting the appeal and that too on the ground that due tax has not been paid u/s 249(4)(b), more so when there is no violation of that section as the assessee has filed her return on 31-03-2011 and tax paid on the returned income. 2. That in any case and in any view of the matter, action of Ld. CIT(A) in not admitting the appeal and dismissing the same in limine, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. A.O without assuming jurisdiction as per law and without complying with mandatory conditions u/s 147 to 151 as envisaged under the Income Tax Act, 1961. 4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. AO on the ground that mandatory notices u/s 148, 142(1), 143(2) and show cause notice were not served upon the assessee. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in passing the impugned order and that too without assuming jurisdiction as per law and by recording incorrect facts and findings and in violation of principles of natural justice.” 3. Though the assessee has raised several grounds of appeal, but the preliminary issue raised by the assessee is vide ground no.2, wherein, the assessee is aggrieved by the order of the CIT(A) in not admitting the appeal and dismissing the same in-limine as bad in law. The assessee is aggrieved by the order of the CIT(A) in holding that due taxes were not paid under section 249(4)(b) of the Act.
Briefly in the facts of the case, an information was received by the Assessing Officer that the assessee had deposited Rs.12,75,600/- in cash
आयकर अपील सं. / ITA No. 1401/Del/2019
in her bank account maintained with State Bank of India, Dankaur, Uttar
Pradesh. The Assessing Officer issued verification letter to the assessee,
against which no reply was filed by the assessee. The Assessing Officer
then recorded reasons for reopening the assessment under section147 of
the Act and notice under section 148 of the Act was issued to the
assessee. In compliance, the Assessing Officer noticed that the assessee
did not furnish any information nor any compliance was made. The
Assessing Officer thus completed the assessment under section 147 r.w.s.
144 of the Act and treated the sum of Rs.12,75,600/- as unexplained cash
credit in the hands of the assessee.
The CIT(A) has decided the appeal ex-parte based on the paper book
filed by the assessee. Vide para 10 of the appellate order, the CIT(A) notes
that the appeal is being decided with reference to form no.35, the
impugned assessment order and the paper book filed by the assessee.
Another point which was noted was that there was no dispute between the
parties that no return of income was filed in response to notice under
section 148 of the Act nor under section 142(1) of the Act. The Assessing
Officer also had not issued any notice under section 143(2) of the Act. Vide
para14 and 15, the CIT(A) notes the provisions of section 249 of the Act
and hold vide para 16 that under the provisions of section 249(4)(b) of the
Act, where the assessee had not filed the return of income, then the
appeal of the assessee could be admitted only if the assessee at the time of
filing of the appeal had paid an amount equal to the amount of advance Page | 3
आयकर अपील सं. / ITA No. 1401/Del/2019
tax, which was payable by him. Vide para-17, the CIT(A) further observes
that admittedly in the instant case, the assessee had not filed any return
of income either on its own under the provisions of section 139(1) or
section 139(4) of the Act or in response to notice under section 148 or
142(1) of the Act and therefore, the provisions of section 249(4)(b) of the
Act would apply. Vide paras 41 and 42, the CIT(A) further observes that in
the instant case, no prayer has been made by the assessee either in the
form no.35 or in the paper book for grant of exemption under section
249(4)(b) of the Act and hence the appeal was held to be not admissible.
The CIT(A) further holds that in case, the assessee had good and sufficient
reasons for granting exemption from the mischief of section 249(4)(b) of
the Act, then said exemption could have been granted to the assessee.
However, as the assessee had not deposited the tax equal to the advance
tax on its income, the appeal was held to be hit by the mischief of section
249(4)(b) and in view of the bar under the said section, the appeal of the
assessee was not admitted and dismissed in limine.
The assessee is in appeal against the order of the CIT(A).
The Ld. AR for the assessee after taking us through the various
paras of order of CIT(A), pointed out that in the case of the assessee, it had
filed the return of income along with computation of income and had paid
the taxes due and hence, the provisions of section 249(4)(b) of the Act
were not applicable. The Ld. AR for the assessee pointed out that the order
of the CIT(A) suffers from infirmity in this regard, in not taking into Page | 4
आयकर अपील सं. / ITA No. 1401/Del/2019
account, the statement of facts filed in the form no.35 itself. He further
pointed out that the further observations of the CIT(A) in paras 87 to 108
at pages 46 to 54 of the appellate order were unnecessary and not
warranted.
The Ld. DR for the Revenue fairly pointed out that the stand of the
assessee of having filed the return of income may be verified.
On perusal of the record and after hearing both the authorized
representatives, the first jurisdictional issue which is raised in the present
appeal is against the order of dismissal by the CIT(A) in dismissing the
appeal in limine for not fulfilling the conditions laid down in section
249(4)(b) of the Act. The case of the CIT(A) is that where the assessee has
failed to file the return of income before the Assessing Officer and had not
paid the taxes on the said income, the appeal of the assessee is hit by the
provisions of section 249(4)(b) of the Act and the assessee has not been
able to establish its case of getting exemption from the provisions of sub-
clause (b) on any good and sufficient reason. The CIT(A) in the initial paras
has time and again talked about deciding the appeal on the basis of form
no.35 itself. This is so because the assessee did not appear in response of
notice issued but did file paper book which is, acknowledged by the CIT(A)
in para 2 of the appellate order itself.
आयकर अपील सं. / ITA No. 1401/Del/2019
First, let us look at form no.35 itself, where the assessee has also
filed the statement of facts. The first item in the statement of facts reads
as under:-
“1. The appellant is an individual and regularly assessed to tax by ITO, Ward 2, Noida, The return of income for A.Y. 2010-11 was filed physically on 31/03/2011 vide receipt no.0302020362 declaring total income of Rs.194860/-.” 11. Now, let us look at the paper book which is filed before the CIT(A),
copy of which has also filed before us wherein the particulars are as
under:-
Copy of paper book filed by assessee before Ld. CIT(A):- a) Copy of acknowledgment of return filed on 31/03/2011 for AY 2010-11. b) Copy of Bank statement of assessee for the impugned year. c) Copy of approval accorded under section151 along with the reasons recorded d) Copy of notice under section148 dated AY 2011-12 e) Copy of notice under section142(1) dated 08/08/2017 and 04/09/2017. f) Copy of the application filed by assessee under RTI g) Copy of reply dated 26/02/2018 received in response of RTI application of assessee h) Copy of appeal filed before Ld. Addl. CIT against the reply received in response of RTI along with the order disposing appeal. i) Copy of appeal filed before Chief Information Officer j) Copy of record from dankaur Centre of Supplies offices and copy of cheques and draft made in favour of Rajya Sarvananik Viran Pranali. k) Copy of bills for procurement of Kerosene oily l) Copy of entry wise explanation of bank statement of assessee Page | 6
आयकर अपील सं. / ITA No. 1401/Del/2019
m) Copy of summarized receipts and payment a/c for the assessee’s bank account. n) Copy of bills of footware purchased by M/s Kanha Shoe Place o) Copy of unreported judgments 2. Copy of written submissions filed before Ld. CIT(A) 12. The said acknowledgment reflects payment of taxes at Rs.550/-
only. Further, the assessee sought certain information under RTI, copy of
the application is placed at page 12 with regard to the proceedings under
section 148, service of notice under section 148 and also under section
142(1) of the Act. The assessee received certain information vide reply
dated 26/02/2018, placed at paper book page 13, against which appeal
was filed before the Addl. CIT and then appeal was also filed before the
Chief Information Officer. However, we are not entering into field of
whether notice under section148/142(1) of the Act was issued to the
assessee, at present. We are deciding the preliminary issue that where the
assessee had furnished the return of income and paid taxes due thereon,
then the order of the CIT(A) suffers from infirmity in applying the
provisions of section 249(4)(b) of the Act. The case of the assessee falls
within the provisions of section 249(4)(a) of the Act, hence it was
incumbent upon the CIT(A) to decide the issue on merits and not dismiss
the appeal in limine. Accordingly, it is deem fit to remit the issue back to
the CIT(A) to decide the issue raised on merits after allowing reasonable
opportunity of hearing to the assessee. The assessee is also directed to
comply with the notices issued by the CIT(A). We decide the present
आयकर अपील सं. / ITA No. 1401/Del/2019
appeal on preliminary issue itself and remit the matter back to the file of
CIT(A) with our directions.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 31st day of December, 2019.
Sd/-
(SUSHMA CHOWLA) �ाियक सद�/JUDICIAL MEMBER िद�ी / िदनांक Dated : 31st Dec, 2019 S.Shekhar, Sr. P.S. आदेश की �ितिलिप अ ेिषत/Copy of the Order is forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent 2. आयकर आयु!(अपील) / The CIT(A) 3. मु# आयकर आयु! / The Pr. CIT 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, िद'ी / DR, ITAT, Delhi 5. गाड) फाईल / Guard file. 6.
आदेशानुसार/ BY ORDER,
सहायक रिज-. ार, आयकर अपीलीय अिधकरण ,िद�ी Assistant Registrar, ITAT, Delhi
आयकर अपील सं. / ITA No. 1401/Del/2019
Draft dictated 30/12/2019 Draft placed before author 31/12/2019 Approved Draft comes to the Sr.PS/PS Order signed and pronounced on File sent to the Bench Clerk .12.2019 Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order. Date of uploading on the website .12.2019