VIMAL KUMAR TAYAL,JEWAR vs. ITO, WARD-2(5), NOIDA

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ITA 6599/DEL/2018Status: DisposedITAT Delhi04 April 2019AY 2009-104 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the CIT(A)'s order and remanded the matter back to the CIT(A) with directions to admit the appeal if the assessee establishes a loss and is not liable to pay advance tax. The appeal should then be decided on merits.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) for failing to deposit tax as required by Section 249(4)(b) of the Income Tax Act, as the assessee had not filed its return of income for the assessment year. The assessee argued that the CIT(A) should admit the appeal if a loss is established.

What were the issues?

Whether the CIT(A) was justified in dismissing the appeal for non-compliance with Section 249(4)(b) without considering the possibility of a loss incurred by the assessee.

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 Appellant: CA Ms. Meatika, CA
For Respondent: Shri S.L. Anuragi, Sr. DR
Hearing: 03.04.2019Pronounced: 04.04.2019

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 04/04/2019

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