ANVAR,NOIDA vs. ITO, WARD-1(1), NOIDA

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ITA 6481/DEL/2018Status: DisposedITAT Delhi12 April 2019AY 2010-114 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the CIT(Appeals) order and remanded the matter back. The CIT(Appeals) is directed to admit the appeal if the assessee establishes a loss and is not liable to pay advance tax, deciding the appeal on merits thereafter.

What were the facts?

The assessee's appeal was dismissed by the CIT(Appeals) for failing to deposit tax as required by Section 249(4)(b) of the Income Tax Act, 1961, as the assessee had not filed its return of income. The assessee argued that this requirement is not applicable if a loss is incurred.

What were the issues?

Whether the pre-deposit requirement under Section 249(4)(b) applies when the assessee has not filed a return and claims to have incurred a loss.

Which sections of the Income-tax Act were involved?

Section 249(4)(b)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI

Before: SHRI N.S. SAINI

For Respondent: Shri S.L. Anuragi, Sr. DR
Hearing: 11.04.2019Pronounced: 12.04.2019

ORDER This is an appeal filed by the Assessee against the order of CIT(Appeals)-1, Noida dated 28.06.2018.

2.

At the outset, the AR of the assessee submitted that the appeal of the assessee was dismissed by the CIT(A) on the ground that the assessee failed to deposit tax of an amount equal to amount of advance tax as stipulated under provisions of section 249(4)(b) of the Income Tax Act, 1961 as the assessee had not filed its return of income for the assessment year under consideration.

3.

The AR of the assessee relied on the decision of Pune Bench of the Tribunal in the case of Hotel Sai Siddi (P) Ltd. vs. DCIT reported in [2011] 13 taxmann.com 155 (Pune), wherein it was held that the CIT(A) should admit the appeal of the assessee and in case the assessee is able to establish the loss incurred for the year under consideration and he was not liable to pay tax of an amount equal to the amount of advance tax as stipulated under the provisions of section 249(4)(b) of the Act. In case it is found that the provisions of section 249(4)(b) are not applicable the appeal may be admitted and the same should be decided on merits. Therefore, he submitted that the matter should be remanded back to the file of the CIT(A) with the very same directions as given by the Pune Bench of the Tribunal in the case of Hotel Sai Siddi P. Ltd. (supra).

4.

The DR had no objection to the above submission of the AR of the assessee.

5.

In the above facts and circumstances, I set aside the order of the CIT(A) and remand the matter back to his file with the very same directions of the Pune Bench of the Tribunal in the case of Hotel Sai Siddi P. Ltd. (supra).

6.

Needless to mention that the CIT(A) shall allow reasonable opportunity of hearing to the assessee before adjudicating the appeal afresh.

7.

In the result, the appeal of assessee is allowed for statistical purposes.

Order pronounced in the open court on 12/04/2019

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