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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Asstt.Year :2012-13 Ushaben Prakashkumar Shah ITO, Ward-1(3)(1) C/o. M.S. Chhajed & Co., CA Vs Ahmedabad. “Kamal Shanti” Nr.Sardar Patel statute Ahmedabad. PAN : BLRPS 2392 J (Applicant) (Responent) : Shri Chhajed, AR Assessee by : Revenue by Shri Hrishikesh Hemant Patki, Sr.DR सुनवाई क� तारीख/Date of Hearing : 25/07/2024 घोषणा क� तारीख /Date of Pronouncement: 30/07/2024 आदेश आदेश/O R D E R आदेश आदेश
The present appeal has been filed by the assessee against order passed by the Commissioner of Income Tax(Appeals), National Faceless Appeal Centre, Delhi [in short referred to as ld.CIT(A)] under section 250 of the Income Tax Act, 1961 dated 27.12.2023 pertaining to Asst.Year 2012-13.
At the outset itself, the ld.counsel for the assessee stated that the assessee’s appeal before the ld.CIT(A) has been dismissed for the reason that no return of income was filed by the assessee and advance tax not paid; that therefore, in terms
2 of provisions of section 249(4)(b) of the Act the appeal was held as un-admissible.
The ld.counsel for the assessee contended that the assessee remained un-responsive before the ld.CIT(A), but the fact of the matter was that the assessee was neither liable to file any return of income nor as a consequence thereon, pay any advance tax. He pointed out that in the assessment framed, the addition had been made on account of cash deposits in the bank account of the assessee, in terms of section 68 of the Act, which was being disputed by the assessee; that the order of the ld.CIT(A) dismissing the assessee’s appeal for non-payment of advance tax was not in accordance with law.
He further contended that the assessee had failed to appear before the AO also. He pointed out that the assessee was lady and her assessment for the Asst.Year 012-13 was reopened by issuing notice under section 148 of the Act after six years on 13.3.2019, but having no prior exposure to the income-tax proceedings and being housewife, she was unaware of the technology and income tax proceedings, and therefore, did not respond to the notice issued to her; that ultimately, the assessment under section 144 read with section 147 was framed on her making addition of cash found deposited in her bank account under section 68 of the Act. The ld.counsel for the assessee admitted that the there was no reasonable cause as such with the assessee for not having participated in the assessment proceedings, but at the same time, pleading that since the matter had not been considered even at the assessment
3 level, the issue be restored back to the AO for consideration afresh. He pleaded that the assessee would participate in the assessment proceedings diligently and seek no adjournment.
The ld.DR was unable to refute the above contentions of the ld.counsel for the assessee, though, he vehemently supported the order of the ld.CIT(A).
Having heard contentions of both the parties, I find merit in the contention of the ld.counsel for the assessee. Undoubtedly, it is not the case, where any advance tax was required to be paid by the assessee. The only income computed of the assessee is u/s 68 of the Act of cash found deposited in her bank account remaining unexplained. Such additions, which are deemed to be income of the assessee, are precluded from the payment of advance tax. Advance tax, as the term denotes has to be paid by the assessee on incomes which the assessees believes and is aware, it would earn during the year. Any income, which the assessee does not believe to be its income, and treated it as such by the Department, are not to be considered for the payment of advance tax.
In view of the same, the dismissal of the appeal of the Revenue for the reasons that the assessee has failed to pay advance tax payment, I find is not correct in law. Moreover, the assessee has not appeared before the AO also in assessment proceedings, and since no reasonable cause has been adduced for the same, I consider it fit case for imposing cost of Rs.2,000/- on the assessee. Also considering that the facts relating to the 4 issue need to be gone into and the AO not having any opportunity to do so while framing the assessment, it is a fit case for restoration of the matter to the file of the AO. The AO is directed to consider the issue afresh after giving due opportunity of hearing to the assessee.
In the light of the above discussion, the appeal of the assessee is allowed for statistical purpose, subject to payment of cost of Rs.2,000/-, which the assessee is hereby directed to deposit with the Gujarat State Legal Services Authority, Ahmedabad.
In the result, the appeal of the assessee is partly allowed for statistical purpose.
Order pronounced in the Court on 30th July, 2024 at Ahmedabad.