GURCHARAN SINGH,KURUKSHETRA vs. ITO, WARD-1, KURUKSHETRA

This is in appeal filed by the Assessee against the order of the Ld. CIT(A)/NFAC, Delhi dt. 01/01/2024 pertaining to Assessment Year 2012-13.

In the present appeal, the Assessee has raised the following grounds of appeal:

Briefly the facts of the case are that the assessment in this case was completed under section 144 r.w.s. 147 of the Act vide order dt. 11/12/2019 wherein the AO has brought to tax capital gain on sale of the property amounting to Rs. 30,79,375/-.

Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A) who has since dismissed the appeal of the assessee holding that since the assessee has neither filed the return of income nor paid advance tax before filing the appeal, the appeal cannot be admitted as per the provisions of Section 249(4)(b) of the Act.

Being aggrieved, the assessee has filed the present appeal.

During the course of hearing, the Ld AR submitted that in appellate proceedings, till 24.11.2023, no notice was ever issued by Worthy CIT(A) objecting to maintainability of appeal due to alleged non-payment of tax in terms of s. 249(4) and it is only via notice dtd. 24.11.2023 that for the 1st and the only time, that this issue was raised and due to non- submission of reply to this notice, the appeal has been dismissed as non- maintainable.

It was further submitted that in response to earlier notices calling for written submission, the appellant had already filed submission on 03.10.2022 which was on record but the same were not considered by Worthy CIT(A) while dismissing this appeal. It was submitted that without considering the submission so filed by the appellant on 03.10.2022, the Worthy CIT(A) issued a letter regarding deficiencies in filing appeal and alleged non compliance of S. 249(4) on 24.11.2023 after a span of about 1.5 years, which was not received by the appellant within time and on non-response of the same, the Worthy CIT(A) exactly after the statutory limit of 7 days dismissed the appeal on 01.01.2024 without providing sufficient time and without appreciating the written submission to the appellant to file response to the same.

It was further submitted that the appellant was not liable to pay advance tax as his total income was less than the maximum amount not chargeable to tax and the Worthy CIT(A) without application of mind and without considering the submission of the appellant passed the order u/s 250 merely on the grounds that the appellant has not filed return of income and not paid advance tax.

It was submitted that the appellant in his submission contended that the addition made by the Ld. AO was erroneous as he computed the capital gains without taking into consideration the cost of acquisition of the asset while computing the income of the assessee.

It was submitted that the Worthy CIT(A) mentioned in order u/s 250 of the Act that the appellant has failed to fulfill the mandatory and essential conditions for admission of appeal before CIT(A) as per sec. 249(4)(b). As per the provisions of the 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 by him if no return of income has been filed. However, in the present case, the appellant was not required to pay advance tax. Additionally, all such additions are under challenge before the Tribunal. If these additions are deleted by the Tribunal, the requirement for payment advance tax becomes NIL. For this proposition, reliance was placed on the following decisions:-

In view of the facts and circumstances, it was submitted that the rejection of the appeal by the Worthy CIT(A) was unjustified and it was prayed that the subject matter may please be remanded back to the Worthy CIT(A).

Per contra the Ld. DR has relied on the orders of the lower authorities.

Heard the rival contentions and purused the material available on record. The appeal of the assessee has been dismissed as non-maintainable by the ld CIT(A) due to alleged non-payment of tax in terms of Section 249(4) of the Act. Prior to dismissal of the appeal, a deficiency notice was issued on 24.11.2023 and in absence of any compliance thereto, the appeal was dismissed vide the impugned order dated 01/01/2014. It has been submitted by the ld AR that earlier notices were duly complied with and written submissions were filed, however, the subject notice couldn’t be responded to due to non-receipt thereof which has not been specifically rebutted by the ld DR. In view of the same, I deem it appropriate that the matter be remitted to the file of the ld CIT(A) which shall consider the explanation of the assessee in terms of advance tax liability u/s 249(4) and all the contentions raised before us are thus left open. Where the same is found to be in order and the appeal is held to be maintainable, decide the matter on merits of the case as per law. Needless to say, reasonable opportunity be provided to the assessee and the latter shall attend to the notices so issued and proceedings as so conducted by the ld CIT(A) and shall be at liberty to raise the necessary contentions and file necessary submissions/documentation, as so advised.

In the result, the appeal of the assessee is allowed for statistical purposes.