RAMRAO TUKARAM PATIL,NASHIK vs. ITO, WARD 2(1), , NASHIK

This is an appeal filed by the assessee directed against the order of the National Faceless Appeal Centre, Delhi [‘NFAC’] dated 14.02.2024 for the assessment year 2016-17.

Briefly, the facts of the case are that the assessee is an individual, no regular return of income under the provisions of section 139(1) was filed for the A.Y. 2016-17. Based on the information available with the Department, the Assessing Officer (AO) noticed that the assessee sold an immovable property to one Mr. Sanjay Kisan Jagatap for a total consideration of Rs.1,25,00,000/-. In the absence of any compliance to the notices issued u/s.142(1) and submission of documentary proof, the AO vide order dated 08.12.2023 passed u/s.147 r.w.s.144 made addition of Rs.1,25,00,000/- as unexplained short term capital gain.

Being aggrieved by the above addition, an appeal was filed before the CIT(A)/NFAC who vide impugned order dismissed the appeal in limine on the ground that the advance tax has not been paid by the appellant before filing of the present appeal, the present appeal shall not be admitted. Therefore, the present appeal filed is not admitted as per the provisions of section 249(4) of the Act.

Being aggrieved, the appellant is in appeal before this Tribunal in the present appeal.

The ld. Authorised Representative for the assessee submits that the assessee did not file any return of income for the year under consideration as there was no taxable income. The assessee disputes the addition made by the AO and hence the provisions of section 249(4)(b) cannot be invoked. The assessee was not required to pay advance tax on the basis of assessed tax but was only required to pay advance tax, if any, which was payable by him, on the basis of his undisputed admitted income.

The ld. Departmental Representative placing reliance on the orders of the authorities submits that no interference by this Tribunal is called for.

We heard the rival submissions and perused the material on record. Undisputedly, the CIT(A)/NFAC had dismissed the appeal of the appellant in limine invoking the provisions of section 249(4)(b) by holding that the appellant had failed to discharge the advance tax liability. However, there is no material on record to indicate that there was any taxable income but for the addition made by the AO. In the circumstances, there was no liability either to pay the advance tax or pay the self-assessment tax. The CIT(A)/NFAC was not justified in invoking the provisions of section 249(4)(b). Therefore, we remand the matter back to the file of CIT(A)/NFAC to decide the issue in appeal on merits based on the material available on record. Accordingly, the appeal filed by the assessee stands partly allowed.

In the result, the appeal filed by the assessee is partly allowed.