MOTA DADVA MAHILA DOODH UTPADAK SAHKARI,RAJKOT vs. THE INCOME TAX OFFICER, WARD-1(2)(1), RAJKOT

On merit, At the outset, Learned Counsel for the assessee, begins by pointing out that assessee has not attended the proceedings before the assessing officer and before learned CIT(A), as the assessee is uneducated and reside in remote area, where internet facility is not available, therefore, notices of hearing were not served on the assessee. On appeal, by the assessee, the Ld. CIT(A), has dismissed the appeal of the assessee, on the ground that assessee has not deposited the advance -tax, as per the provisions of Section 249(4)(b) of the Act.

The ld. DR for the Revenue debarred from objecting the stand of the ld. Counsel.

We have heard both the parties and perused the materials available on record. We note that both the appeals were dismissed by the Ld. CIT(A), on the ground that assessee did not deposit the advance tax. The findings of the Ld. CIT(A) (which is a similar in all these two cases), are reproduced below: “As per the provisions of the section 249(4)(b) of the Act, the appeal shall not be admitted, unless the appellant has paid an amount equal to the amount of advance tax which was payable by him if no return of income has been filed. In the present case, the appellant did not file return of income. As per the above assessment order, the tax liability of the appellant was Rs.2,05,23,698/- which includes the advance tax payable by the appellant as well as the interest on account of delayed payment of advance tax. On or before filing the present appeal, the appellant has failed to make the requisite payment of the amount equal to the amount of advance tax which was required to be paid by him. Further, the appellant neither provided any clarification/explanation in response to the deficiency letter issued by this office nor did he offer any reason, leave alone any good and sufficient reasons as mandated in the proviso to sec.249(4), seeking exemption from the operation of the sec. 249(4)(b) even though sufficient opportunities were provided to him. On careful consideration of the above facts and circumstances, as the appellant has failed to fulfill the necessary conditions for admission of appeal before CIT(A) as per sec. 249(4)(b), the present appeal is liable to be held as not eligible for admission.

We note that proviso of section 249(4)(b) of the Act, clearly states that on an application, made by the assessee, the Commissioner (Appeals) may, for any good and sufficient reason, to be recorded in writing, exempt the assessee from the operation of the provisions of clause (b) of sub-section 4 of section 249 of the Act. However, we note that order passed by both the lower authorities are ex-parte orders, without adjudicating the various issues involved in these appeals, on merit, therefore, we are of the view that one more opportunity should be given to the assessee to explain his case and to prove his claim, on merit, by submitting sufficient evidences before the assessing officer. On account of non-compliance altitude of the assessee, we impose a cost of Rs.5000/- (for both appeals), to be deposited by the assessee, in the Prime Minister national relief fund.

Considering the facts and circumstances of the case and the fact that the assessment order was confirmed by Ld.CIT(A) in ex parte order, we are of the considered view that the assessee deserves one more opportunity to contest its case on merit. In the interest of justice, we set aside the order of Ld.CIT(A) and remit the matter back to the file of assessing officer with a direction to pass fresh orders, in both appeals, in accordance with law after granting adequate opportunity of hearing to assessee. The assessee is directed to be vigilant and to furnish all details and explanation as needed by assessing officer by not seeking adjournment without valid reason. With this direction, the grounds of appeal raised by the assessee, in these both appeals, are treated, as allowed for statistical purposes.