SANJAY KUMAR GUPTA,DELHI vs. ITO, WARD-55(5), NEW DELHI

The Ld. Assessee's Representative submitted that the Ld. CIT(A) committed error in invoking the provision of Section 249(4)(b) of the Income Tax Act, 1961 ('Act' for short) and erred in dismissing the Appeal of the Assessee ignoring the fact that the Assessee has duly filed the return of income. Thus, sought for allowing the Appeal of the Assessee.

Per contra, the Ld. Department's Representative relying on the order of the Ld. CIT(A) submitted that the Ld. CIT(A) committed no error in dismissing the Appeal, accordingly, sought for dismissal of the Appeal.

We have heard both the parties and perused the material available on record. An assessment order came to be passed against the Assessee on13/05/2023 u/s 147 of the Act by making an addition of Rs. 2,23,52,140/- on account of unexplained investment. The Assessee filed an Appeal before the Ld. CIT(A), challenging the assessment order dated 13/05/2023, which has been dismissed by invoking provision of Section 249(4)(b) of the Act.

The provision of Section 249(4)(b) of the Act is applicable only when no return has been filed by the Assessee. In the present case, the Ld. A.O. himself in first para of the assessment mentioned that ‘Return declaring an income of Rs. 5,89,590/- under the head “income from other sources”’. Therefore, the invocation of provision of Section 249(4)(b) of the Act in dismissing the Appeal by the Ld. CIT(A) is found to be erroneous. Therefore, the order of the Ld. CIT(A) is hereby set aside and we remand the matter to the file of the Ld. CIT(A) with a direction to decide the first Appeal on its merit. Needless to say, the Assessee shall be provided with opportunity of being heard to the Assessee.

In the result, Appeal of the Assessee is partly allowed for statistical purpose.