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Facts
The assessee's case was reopened under section 147 for AY 2011-12 due to unexplained cash deposits of Rs.13,14,700/- and a time deposit of Rs.17,50,000/-. The AO framed an ex-parte assessment under sections 144 r.w.s. 147 and made additions, as the assessee allegedly did not respond to notices. Subsequently, the CIT(A) dismissed the assessee's appeal on the technical ground of non-payment of advance tax, citing section 249(4)(b) of the Income Tax Act.
Held
The Tribunal found that the CIT(A) erred in technically dismissing the appeal, as the assessee contended having no taxable income and thus no advance tax liability, and further claimed that notices from the AO were never served. In the interest of justice, the Tribunal remitted the matter back to the Assessing Officer for fresh adjudication after providing the assessee an opportunity of being heard.
Key Issues
1. Whether the CIT(A) was justified in technically dismissing the appeal for non-payment of advance tax under section 249(4)(b). 2. Whether the ex-parte assessment framed under sections 144/147 was valid given the assessee's claim of non-service of notices.
Sections Cited
Section 250, Section 249(4)(b), Section 147, Section 144, Section 148, Section 142(1), Section 208
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’ : NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and MS. MADHUMITA ROY, JUDICIAL MEMBER ITA No.587/DEL/2024 (Assessment Year: 2011-12) Navpreet Singh, vs. ACIT, Circle 45 (1), H.No.11, Street No.24, New Delhi. Basti Tankan Wali, Ferozepur – 152 001 (Punjab). (PAN : CQJPS8789K) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Ashwani Kumar, CA REVENUE BY : Shri Om Prakash, Sr. DR Date of Hearing : 01.05.2024 Date of Order : 03.05.2024 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (Appeals)/National Faceless Appeal Centre (NFAC) dated 29.01.2024 for the assessment year 2011-12. 2. The assessee has taken the following ground of appeal :- “That order passed u/s 250 of the Income Tax Act, 1961 by the Learned Commissioner of Income Tax (Appeals), NFAC, Delhi is against law and facts on the file in as much he was not justified to hold that the appeal is not eligible for admission as per provisions of section 249(4)(b).” 3. The case of the assessee was reopened under section1 47 of the Income-tax Act, 1961 ( for short ‘the Act’) for scrutiny on the reasons of not
2 ITA No.587/DEL/2024 explaining the source of cash deposits of Rs.13,14,700/- and time deposit of Rs.17,50,000/-. AO noted that there was no response from the assessee to the notices issued and he framed the assessment under section 144 r.w.s. 147 of the Act. He made addition of the aforesaid amounts as unexplained income of the assessee. 4. Upon assessee’s appeal, ld. CIT (A) dismissed the appeal on technical ground that advance tax was not paid by the assessee. 5. Against this order, assessee is in appeal before us. We have heard both the parties and perused the records. 6. As regards ld. CIT (A)’s technical dismissal of the appeal, ld. Counsel for the assessee submitted the following submissions :- “(2) The Ld. Commissioner of Income Tax (Appeals) dismissed the appeal only on the technical ground that the Appellant has not fulfilled the necessary conditions for admission of appeal before the Commissioner of Income Tax (Appeals) as per section 249(4)(b) of the I.T Act, 1961. For the reference of the Hon'ble Bench section 294(4)(b) is reproduced as under:- 249(4): No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him. (3) In the present case the Appellant had no taxable income thus he had not filed any return of income. A notice u/s 148 was issued by the Ld. Assessing Officer which was never served on the Appellant. Further, notice u/s 142(1) was also not served on the Appellant. As per the assessment order service had been effected through affixture and ex-parte order was passed by the Ld. Assessing Officer computing the total income at Rs.30,64,700/-.
3 ITA No.587/DEL/2024 (4) It is respectfully submitted that the Appellant had no taxable income and thus he was not required to deposit any amount of advance tax nor any notice u/s 208 was served on the Appellant requiring him to deposit any advance tax. Thus, it is respectfully submitted that the Appellant was not required to deposit any advance tax nor any tax was due towards the Appellant on the returned income (no return of income was ever filed). The question of violating the provisions of section 249(4)(b) does not arise in the instant case. Thus the Ld. Commissioner of Income Tax (Appeals) was not justified to dismiss the appeal only on this technical ground. (5) It is thus prayed that the case of the Appellant may kindly be adjudicated accordingly and the same may be restored back to the file of the Ld. Assessing Officer to enable him to frame the assessment de novo.” 7. Per contra, ld. DR for the Revenue did not have any objection in remitting the matter to the file of AO. 8. Upon careful consideration, we note that assessee’s submissions are cogent that ld. CIT (A) erred in technically dismissing the appeal as the assessee was not liable to pay any advance tax. Furthermore, it is the plea of the assessee that assessee could not respond to AO’s notices as the same were not received by the assessee. Hence, in the interest of justice, we remit the matter to the file of AO. AO shall decide the matter afresh after providing an opportunity of being heard to the assessee. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 3rd day of May, 2024. Sd/- sd/- (MADHUMITA ROY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 3rd day of May, 2024 TS
4 ITA No.587/DEL/2024