JASBIR KUMAR, LEGAL HEIR OF SH. KISHNA (DECEASED),YAMUNA NAGAR, HARYANA vs. INCOME TAX OFFICER, WARD-1, YAMUNA NAGAR, HARYANA, YAMUNA NAGAR, HARYANA

We first take quantum appeal i.e. ITA No. 195/CHD/2024. The ld. Counsel for the assessee, at the very outset submitted that ld. CIT(A) has dismissed the appeal with the help of Section 249(4)(b) of the Income Tax Act. He pointed out that assessee did not file the return of income. The AO has reopened the assessment and issued a notice under Section 148 of the Income Tax Act.

Thereafter, he passed an ex-parte assessment order on 23.12.2019. The ld. AO has determined the taxable income at Rs.58,29,000/-. The ld. Counsel for the assessee further pointed out that Section 249(4) contemplates that an appeal of the assessee would not be entertained by the CIT(A) unless assessee had paid the tax on the agreed income. In other words, if an assessee has filed a return declaring income under Section 139(1), then on that & 196/CHD/2024 A.Y.2012-13 3 income assessee ought to have paid the taxes. In the present case, since assessee has not paid the taxes, therefore, the demand by virtue of the income determined by the AO would not be construed as an liability to pay advance tax and on non payment of such taxes, appeal of the assessee is to be construed as not maintainable. This is an incorrect approach of the CIT(A). For buttress the contention, he relied upon four orders of the ITAT namely; Ritika Jain Vs ITO ITA 168/Agra/2023, Vishnusharan Chandravanshi Vs ITO reported in 161 taxmann.com 803 and in the case of Balwinder Singh Vs ITO 163 taxmann.com 599 (Amritsar Bench) and that of ITAT Indore in the case of Pushpendra Singh Vs ITO ITA 122/Indore/2024. Copies of all these orders are placed on record by the ld. Counsel for the assessee. On the strength of these decisions, ld. Counsel for the assessee contended that impugned orders of the CIT(A) be set aside and appeals be restored to the file of CIT(A) for deciding on merit afresh. & 196/CHD/2024 A.Y.2012-13 4

The ld. Sr.DR, on the other hand relied upon the orders of the ld. CIT(A).

We have duly considered the rival contentions and gone through the record carefully. We find that verbatim identical situation arose before the Tribunal in the above four orders and issue is squarely covered in favour of the assessee by the decisions rendered by various Benches of the ITAT. It is pertinent to note that assessee is disputing the very demand raised by the AO. It is not exactly ascertainable whether any demand which could be construed as an advance tax liability is really assessable in the hands of the assessee or not. The AO has passed an ex-parte order. The ld. CIT(A) ought to have given a chance to the assessee for claiming exemption from invoking of Section 249(4)(b) or CIT(A) ought to have suo-moto exempted the assessee from implication of this Section and should have decided the appeal atleast on merit. On due consideration of the above facts and circumstances, we deem it appropriate to set aside the impugned order of the & 196/CHD/2024 A.Y.2012-13 5 ld. CIT(A) and restore the appeal to the ld. CIT(A) for adjudication on merit.

As far as penalty appeal is concerned, we are of the view that until and unless the quantum additions are being decided, penalty appeal cannot be taken up for hearing.

In the result, both the appeals are allowed.