Shri Sampat Kacharu Dhage, Nashik V. Income Tax Officer, Ward-1(5), Nashik, Nashik

ITA 1019/PUN/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5561 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 30-06-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 20-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANKET JOSHI VIRTUAL
• Keywords: Opportunity of being heard; Cost of acquisition; TDS; Set aside
• Section: 147; 148; 139; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1019/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2014-15 Shri Sampat Kacharu Dhage, Flat No.12, Om Sai Apartment, Opp. Reliance Petrol Pump, Dindori Road, Mhasrul, Nashik- 422004. PAN : ABNPD0976C Vs. ITO, Ward-1(5), Nashik. Appellant Respondent आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 15.09.2023 passed by Ld CIT(A)/NFAC for the assessment year 2014-15. 2. The appellant raised the following grounds of appeal :- “1. The assessee submits that the assessment order u/s 147 r.w.s. 144 dated 31.10.2019 has been passed without mentioning the DIN in the Body of the Order as mandated by CBDT vide its Circular No. 19/2019 dated 14.08.2019 and therefore, the said asst, order may be declared as null and void in law in view of the Assessee by : Shri Sanket Joshi (Virtual) Revenue by : Shri Akhilesh Srivastava Date of hearing : 01.07.2024 Date of pronouncement : 29.07.2024 ITA No.1019/PUN/2023 2 law laid down by Hon’ble Delhi High Court in case of Brandix Mauritius Holdings Ltd. [ITA No. 163/2023] dated 20.03.2023 as well as various decisions of Hon’ble ITAT, Pune. 2. The assessee submits that the learned CIT(A) erred in not admitting the appeal on the ground that the assessee had not satisfied the condition of payment of advance tax as specified u/s 249(4)(b) without appreciating that the said condition was not applicable to the facts of the present case and therefore, the appeal ought to have been adjudicated on merits. 3. Without prejudice to the above grounds, it is submitted that the assessee could not comply with the notice issued the A.O. in view of the fact that the notices were issued on the old address of the assessee who had shifted from there around the year 2008 and also in view of the fact that the assessee was critical and had undergone angioplasty during the relevant period and therefore, the matter may please be set aside to the file of the A.O. for completing the asst. afresh after affording reasonable opportunity of being heard. 4. The appellant craves, leave to add, alter, amend and delete any of the above grounds of appeal.” 3. The facts, in brief, are that the assessee is an individual engaged in the business of trading of seeds, pesticides & fertilizers up-to the year 2008 and again started the same business from 2013 on very small scale. The assessee sold the business premises for a consideration of Rs.51,11,000/- and received Rs.50,60,390/- after deducting of TDS of Rs.50,603/-. No return of income under the provisions of section 139 of the IT Act was filed for the assessment year under consideration. The AO issued notice u/s 148 on 20.11.2018 and notice u/s 142(1) from time to time. However, during relevant period i.e. assessment year under consideration, the ITA No.1019/PUN/2023 3 appellant was hospitalized due to heart attack and was undergone angioplasty and hence could not comply with the above-said notices. The AO assessed the income of the appellant at Rs.51,61,603/- i.e. sale consideration of immovable property of Rs.51,11,000/- and has also added the TDS of Rs.50,603/- and completed the assessment vide order dated 31.10.2019 passed u/s 144 r.w.s. 147 of the IT Act. 4. Being aggrieved with the above action of the Assessing Officer, the appellant filed an appeal before the ld. CIT(A)/NFAC, who vide impugned order, without admitting the appeal on the ground that the assessee had not satisfied the conditions of payment of advance tax as specified u/s 249(4)(b) of the IT Act, dismissed the appeal of the assessee. 5. Being aggrieved with the decision of the ld. CIT(A)/NFAC, the assessee is in appeal before us. 6. When the appeal was called on for hearing, the counsel of the assessee appeared virtually & requested to adjourn the case. Since the issue in this appeal is covered by various decisions of the Co- ordinate Bench of the Tribunal, we reject the adjournment ITA No.1019/PUN/2023 4 application filed by the assessee and proceed to decide the appeal on merits after hearing both the parties. 7. LD AR submitted before us that the order passed by LD CIT(A)/NFAC dismissing the appeal of the assessee, without admitting the same for adjudication, is not correct. It was further submitted that the sole reason for dismissing the appeal of the assessee by LD CIT(A)/NFAC was non-payment in accordance with section 249(4)(b) of the IT Act. It was further clarified before the bench that as per the assessee his income was non-taxable & therefore no advance tax was payable by him & therefore in such situation he was not supposed to pay any advance tax before filing the first appeal. In support of these contentions the counsel of the assessee relied on various decisions passed by coordinate benches of this Tribunal & also relied on judgement passed by the Hon’ble Karnataka High Court in the case of Govindappa Setty vs. ITO, 232 ITR 892 (Karnataka). 8. LD DR vehemently supported the orders passed by both the authorities & requested to dismiss the appeal of the assessee. 9. We have heard LD Counsels from both the sides & perused the material available on the record. We are of the considered ITA No.1019/PUN/2023 5 opinion that the advance tax if any payable as per section 249(4)(b) of the IT Act is to be determined at the behest of the assessee. If there is no advance tax liability according to the assessee then he need not to deposit the same & LD CIT(A)/NFAC is required to admit the appeal of the assessee in such an event. In the instant case it is the claim of the assessee that since the assessee remained absent the assessment order was passed ex-parte & whatever deductions were legally available to the assessee were not allowed by the Assessing Officer. It is the contention of the assessee that he was suffering from Heart problem & got hospitalized due to heart attack & was undergone angioplasty due to which could not appear on the dates of hearing provided by the Assessing Officer. And it is apparent that even cost of acquisition of the house was not allowed by the AO, while calculating the capital gain income, which resulted in determination of unnecessary taxable income in the hands of the assessee. We find that the appeal of the assessee was dismissed in a summery manner without admitting the same for adjudication on merits of the case. It was the observation of LD CIT(A)/NFAC that the assessee was required to deposit advance tax in the light of section 249(4)(b) of the IT Act & when the assessee was issued ITA No.1019/PUN/2023 6 show cause to explain this point he did not chose to file any application to exempt him from payment of advance tax in the light of the fact that no advance tax is payable by him, instead a letter dated 18-08-2021 was filed mentioning that return of income is not filed as there was no taxable income. In the light of decisions passed by Co-ordinate Bench of the Tribunal in the case of Dilip Hiralal Chaudhari vs. ITO in ITA No.642/PUN/2024 order dated 05.06.2024 and in the case of Vishnusharan Chandravanshi vs. ITO in ITA No.73/RPR/2024 order dated 10.04.2024 and the judgement passed by Hon’ble Karnataka High Court in the case of Govidappa Setty vs. ITO, 232 ITR 892 (Karnataka), as well as considering the totality of the facts of the case, we deem it appropriate to set-aside the order passed by LD CIT(A)/NFAC with a direction to admit the appeal of the assessee for adjudication of the appeal on merits of the case after providing reasonable opportunity of hearing to the assessee. LD CIT(A)NFAC shall pass the order as per facts & law after providing reasonable opportunity of being heard to the assessee. The assessee is also hereby directed to respond to the notice issued by ld. CIT(A)/NFAC and submit the requisite details on the appointed date without seeking any adjournment under any ITA No.1019/PUN/2023 7 pretext, failing which ld. CIT(A)/NFAC is at liberty to pass appropriate order as per law. We hold and direct accordingly. Thus, the grounds of appeal raised by the assessee are partly allowed. 10. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 29 th day of July, 2024. Sd/- Sd/- (INTURI RAMA RAO) (VINAY BHAMORE) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 29 th July, 2024. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.