NEETU TAYAL,GAUTAM BUDH NAGAR vs. ITO, WARD- 2(3), NOIDA

आदेश / ORDER

PER SUSHMA CHOWLA, JM:

1. “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.

144 of the Act and treated the sum of Rs.12,75,600/- as unexplained cash credit in the hands of 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 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.

“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:-

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 appeal on preliminary issue itself and remit the matter back to the file of CIT(A) with our directions.

Order pronounced in the open court on 31st day of December, 2019.