CREATIVE REALMART PRIVATE LIMITED,JAIPUR vs. INCOME TAX OFFICER WARD-3(5), JAIPUR

That the Ld Lower Authority has wrongly, arbitrarily and illegally rejected the objection of the appellant company regarding issue of notice u/s 148, in spite of the facts that the basic facts of the case were wrongly mentioned or the Ld Lower Authority was not having correct information about the transaction and even the detail and documents asked were not provided.

of the assessee, it is noticed that the ld.CIT(A) passed an ex-parte order by dismissing the appeal of the assessee on account of non-filing the return in response to notice u/s 148 of Income Tax as well as not paid an amount equal to the amount of advance which was payable by the assessee. The relevant observations made by the ld.CIT(A) at para 4 to 7 of his order are reproduced as under:- ‘’4. in this regard, it would not be out of place to mention here that it is assessed income and not income, claimed to have been earned by the appellant, is the basis for computation of an amount equal to the amount of advance tax which is to be paid at the time of filing of appeal, Provisions of section 249(4)(a) and 249(4)(b) of Income Tax Act, in this regard, are very speaking and compulsory in nature in as much as their compliance is must before admission of appeal. Whereas provisions of section 249(4)(a) of the Act say that tax is to be paid on returned income where ITR has been filed, provisions of section 249(4)(b) are to be construed so as to compute the amount equal to the amount of advance tax on the basis of assessed income as no ITR was filed by the appellants. The non- filers cannot be treated in a more advantageous manner in comparison to ITR- filers so that non-filers can avoid payment of an amount equal to the amount of advance tax, claiming that their income was below taxable limit

5. The appellant has offered Not applicable comments at sl No 9 of Form-35 and the appellant failed to make payment of amount equal to the advance tax which was due on its income. It is, therefore, clear that information, given at sl no 9 of Form-35 is not correct and the appellant has not made payment of amount equal to the advance tax which was due on its income. The appellant has also not requested for exemption from operation of the provisions of clause (b) of sub- section (4) of section 249 of the Act. Since the appellant has not fled return in response of notice is 148 of income as well as not paid an amount equal to the amount of advance tax which was payable by present appeal is not liable to be admitted. The appeal is infructuous and is therefore, dismissed.

7. The appeal is dismissed.’’ M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 2.2 During the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) has passed an ex-parte order without providing an opportunity to cross examine the other party (i.e. Banka Group) as the addition made by the AO amounting to Rs.1,14,55,968 (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) is not justified and thus the issue may be restored to the file of the ld. CIT(A) for afresh adjudication as the return of assessee company is in loss and further submitted that the addition made by the AO amounting to amounting to Rs.1,14,55,968 (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) does not pertain to the assessee. He further submitted that the assessee had filed the return in response to notice u/s 148 and thus the assessee is not liable to deposit advance tax before filing of appeal in Form 35 and the assessee has not done any non-compliance as per Section 249(4)(b) of the Income Tax Act. 2.3 On the other hand, the ld.DR supported the orders of the lower authorities.

2.4 We have heard both the parties and perused the materials available on record. Brief facts of the case are that the assessee company filed original return of income for the assessment year 2014-15 on 28-09-2014 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR declaring total loss of Rs.(-) 4,51,023/-. The assessee company is engaged in the business of real estate. No scrutiny assessment u/s 143(3) of the Act was completed. Thereafter notice u/s 148 of the Act was issued to the assessee on 09-04-2021 and in compliance to this notice, the assessee filed return of income on 29-04-2021 and in this return of income the assessee showed similar income as was shown in the return of income filed u/s 139(1) of the Act. The subject matter of issuing notice after 31-03- 2021 on the basis of pre-amended provisions of Section 148 of the Act resulted into large scale litigation and all over India various Writ Petitions were filed and the matter travelled to Supreme Court against decision pronounced by various High Courts. The Hon’ble Supreme Court vide its judgement dated 04-05-2022 (2022 SSC online SC 543) in the case of Union of India vs Ashish Agarwal held that the notice issued u/s 148 between 01-04-2021 to 30-06-2021 of the Act was deemed to have been issued u/s 148A of the Act and should have been treated as show cause notice in terms of Section 148A(b) of the Act. Further, the Assessing Officer were also directed to provide the information and documents which were relied upon while recording reasons for reopening of the assessment. Accordingly, as per the directions issued by the Hon’ble Supreme Court of India, the assessee was provided an opportunity by the Department to file M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR reply. It is further noted that in this case order u/s 148A(d) was passed by the Jurisdictional Assessing Officer on 26-07-2022 and new notice u/s 148 of the Act was issued to the on 26-07-2022 requiring the assessee to file the return of income for which the assessee filed the return of income and thus showed similar income as shown in the return of income filed u/s 139(1) of the Act. It is noted that the case was reopened on the basis of certain specific information available with the Department which was received through DDIT (Investigation),Unit (3), Kolkata that a search and seizure action in the case of Bank Group was carried out by the Investigation Wing of Department on 21-05-2018 resulting into collection of evidences and recording of the statements of various persons including Shri Mukesh Banka. During the investigation, it was revealed that Mukesh Banka Group, a leading entry provider through bank account of concerns is indulged in providing accommodation entries in the nature of bogus unsecured loans or in other forms in lieu of cash from the interested beneficiaries. The Investigation wing observed that the assessee under consideration is also one of the beneficiaries who have obtained the accommodation entries from various concerns of above group. During the course of analysis and examination of bank statements of paper/ shell companies of Banka Group, the entire scheme of arrangement regarding M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR the withdrawal of cash from various bank accounts of paper / shell companies of Shri Mukesh Banka was clearly established and substantiated. The statement of Shri Mukesh Banka was recorded u/s 131/132(3) of the Act, enquiry conducted by the Investigation Wing and establishment beyond doubt that Fundiea Vinimay Pvt.Ltd, Mangalsudha Builders Pvt. Ltd and Subhkari Marketing Pvt. Ltd were the paper/ shell companies run and controlled by Shri Mukesh Banka which were involved in providing accommodation entries through unsecured loans. The AO noted that assessee is the beneficiary of these bogus accommodation entries in the guise of unsecured loan amounting to Rs.1,14,55,968/- (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) which were credited in the books of assessee during F.Y. 2013-14. Therefore, the AO made an addition of Rs.1,14,55,968/- in the hands of the assessee u/s 68 as Cash Credits in the total income declared by the assessee in return of income. In first appeal, the ld. CIT(A) dismissed the appeal of the assessee by observing that the assessee has not filed return of income u/s 148 of the Act as well as not paid an amount equal to the amount of advance tax which was payable by the assessee. The Grievance of the assessee is that the assessee that finding of the ld. CIT(A) that the has not paid an amount equal to the amount of advance tax which was payable by M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR the assessee and thereby he has not admitted that appeal. As is evident from the record that the assessee filed ITR having loss and therefore, there is no finding on whether the assessee in that case was liable to pay advance tax or not and in case of loss and ld. DR did not place any contrary liability of the assessee on advance tax. In view of the above facts and circumstances, the Bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus, the appeal of the assessee is allowed for statistical purposes.

2.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law.

M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 3.0 In the result, the appeal of the assessee is allowed for statistical purposes Order pronounced in the Open Court on 12 /11/2025.