DHARAMBIR SINGH,ROHTAK, HARYANA V. ACIT, ALWAR

ITA 832/DEL/2024

AI Insights

The case involves Dharambir Singh, the appellant, who appealed against the order of the CIT(A), National Faceless Appeal Centre, which dismissed his appeal in limine for non-payment of advance tax. The appellant had not filed a return for the assessment year 2013-14, despite having made time deposits. The Assessing Officer (AO) initiated reassessment proceedings and made additions to the appellant's income, which were contested in the first appeal. The CIT(A) dismissed the appeal due to non-payment of advance tax, which the appellant contested before the Tribunal. The Tribunal found that the appellant was not liable to pay advance tax as he had no taxable income, and thus, the dismissal of his appeal by the CIT(A) was not justified.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23588 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Other Referred Cases: Shamama Reddy Vs. ITO, Vikram Singh Vs. ITO
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR DHANESTA
• Assessee Lawyers: NAVEEN GOEL
• Keywords: Set aside; Opportunity of being heard; Reassessment proceedings
• Section: 144

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’: NEW DELHI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI MANISH AGARWAL, ACCOUNTANT MEMBER ITA No.832/Del/2024 (ASSESSMENT YEAR: 2013-14) Dharambir Singh H.No.247, VPO Bhalot, Rohtak, Haryana-124401 PAN-BANPS9189Q Vs. ACIT, Circle-1, Alwar Rajsthan. (Appellant) (Respondent) Assessee by Shri Naveen Goel, CA Department by Shri Rajesh Kumar Dhanesta, Sr. DR Date of Hearing 19/03/2025 Date of Pronouncement 19/03/2025 O R D E R PER MANISH AGARWAL, AM: This is an appeal filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), dated 12.02.2024 in Appeal No. NFAC/2012-13/10060577 for AY 2013-14. 2. At the outset from the perusal of grounds appeal, it is seen that besides challenging the additions made by AO, assessee challenged the appellate order where the appeal of the assessee is not admitted for non-payment of advance tax though the assessee is not having 2 ITA No.832/Del/2024 Dharambir Singh vs. ACIT taxable income. Since the ld. CIT(A) has dismissed the appeal of the assessee in limine thus we first decide the issue of maintainability of the appeal of the assessee. 3. Brief facts are that the AO had the information that the assessee had made time deposits of Rs.26,32,288/- in State Bank of India and no return was filed by assessee for the year under appeal. Accordingly, reassessment proceedings were initiated and a notice u/s 148 of the Act was issued however, no return was filed by the assessee in compliance to such notice. Assessee also failed to participate in the assessment proceedings thus the AO has completed the assessment u/s 144 dt. 25/09/2021 by making addition of Rs.11,68,768/- towards the time deposits and interest thereon. Aggrieved, the assessee carried matter in first-appeal. The CIT(A) has dismissed the appeal of the assessee in limine for want of payment of advance tax as per the provisions of Section 249(4)(b) of the Act. Against this order of ld. CIT(A), assessee is in appeal before Tribunal. 4. So far as the non-maintainability of assessee’s appeal on account of non-payment of advance tax we find that the ld. CIT(A) invoked the provisions of section 249(4) of the Act which reads as under: “(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 ITA No.832/Del/2024 Dharambir Singh vs. ACIT Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.” 5. Admittedly, as per section 249(4)(b) of the Act, in a case where no return of income has been filed by the assessee, then his appeal shall be maintainable before the CIT(Appeals) only if he had paid an amount equal to the amount of advance tax which was payable by him. At the same time, the legislature had carved out an exception to the applicability of the aforesaid statutory requirement by way of a “proviso” to Section 249(4) of the Act, as per which, on an application made by the appellant, the CIT(Appeals) may, for any good and sufficient reason to be recorded in writing exempt him from the operation of the aforesaid statutory provision. The statutory requirement contemplated in Clause (b) of sub-section (4) of Section 249 of the Act would stand triggered only where any obligation was cast upon the assessee to pay “advance tax”. As is evident from the facts and grounds of appeal filed by assessee along with the appeal memo, that assessee is not having total income exceeding the maximum amount not chargeable to tax and thus in absence of any taxable income for the year under consideration, he was not under any obligation to compute and pay any advance tax. 6. The assessee is retired from Indian Armed forces and the immediate source of the time deposits was out of his retirement benefits which since were exempt from tax, no return was filed by the assessee. In view of these facts, we are of the opinion that the view taken by the CIT(Appeals) while dismissing the appeal of the assessee 4 ITA No.832/Del/2024 Dharambir Singh vs. ACIT as not maintainable for the sole reason of non-compliance of the mandatory condition contemplated in Clause (b) of sub-section (4) of Section 240 the Act is not maintainable. This view is supported by the orders of the ITAT, Bengaluru in the case of Shamama Reddy Vs. ITO in ITA No.1120/Bang/2023 dt. 20.02.2024 and also of the ITAT, Delhi in the case of Vikram Singh Vs. ITO in ITA No.6559/Del/2019, dt. 21.02.2023. 7. Accordingly, in view of above discussion, we set aside the order of the CIT(Appeals) and restore the same to his file with a direction to dispose-off appeal of the assessee after considering the merits of the case. Needless to say, the CIT(Appeals) shall in the course of the set-aside proceedings afford a reasonable opportunity of being heard to the assessee. The ground of appeal no.1 of the assessee is allowed for statistical purposes. 8. In the result, appeal filed by the assessee is partly allowed. Order pronounced in the open court on 19.03.2025. Sd/- Sd/- /- (MAHAVIR SINGH) (MANISH AGARWAL) VICE PRESIDENT ACCOUNTANT MEMBER Dated: 25/03/2025 PK/Sr. Ps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI "