DURAIRAJ SRIVALLI,TIRUPUR, TAMIL NADU vs. THE INCOME TAX OFFICER, INCOME TAX DEPARTMENT, WARD TWO OF TWO, TIRUPUR

The Ld. CIT(A) has dismissed the appeal by observing as under:

“2.7. As per 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. As the applicable advance tax has not been paid by the appellant before filing of the appeal, the appeal shall not be admitted. Therefore, the present appeal fled is not admitted as per the provisions of Section 249(4) of the Act.”

The Ld. A.R has argued that the assesse has not filled return of income either u/s 139 of the Act or in response to notice u/s 148 of the Act and she has not admitted any advance tax payable, therefore section 249 of the Act is not applicable in her case. The Ld AR submitted that there is no deficiency in Form 35 filled and the Ld CIT(A) has dismissed the appeal without adjudicating on merit .

We have heard the rival contentions, and perused the materials available on record. The Assessee has not filled the return of income and has not admitted any advance tax payable. The Ld CIT(A) has not admitted the appeal on the ground that assesse has not paid advance tax before filling the appeal as per section 249(4) of the Act. However it is seen that there is no advance tax payable as per Form 35 and there is nothing on record that assessee has admitted any advance tax. In view of above, the Ld CIT(A) was not justified in not admitting the appeal. We direct the Ld. CIT(A) to admit the appeal and adjudicate the appeal on merit

In the results, the appeal filed by the assessee is allowed for statistical purposes.