Oona Singh , Noida V. DCIT, Circle- 2, Noida

ITA 1100/DEL/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5708 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIVING A SPECIFIC NOTICE OF QUERY. NOW; BEFORE
• Section: 148; 142(1); 201; 208; 139(1); 139(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘E’ : NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER and SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.1100/Del./2019 (ASSESSMENT YEAR : 2009-10) Shri Oona Singh, vs. DCIT, Circle 2, D – 68, Sector 36, Noida. Noida – 201 301 (Uttar Pradesh) (PAN : ABLPS5028E) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Rakesh Sehgal, CA REVENUE BY : Ms. Rinku Singh, Sr.DR Date of Hearing : 23.12.2021 Date of Order : 23.12.2021 O R D E R PER AMIT SHUKLA, JM : Aforesaid appeal has been filed by the assessee against the impugned order dated 30.08.2018 passed by the ld. CIT(A)-I, Noida for the quantum of assessment passed under section 147/144 of the Income-tax Act, 1961 (for short ‘the Act’) for the assessment year 2009-10. 2. In various grounds of appeal, the assessee has challenged the validity of reopening on jurisdiction as well as on merits of the additions on the primary issue that ld. CIT (A) has erred in invoking the provisions of section 249(4)(b) holding that the appeal of the assessee is not ITA No.1100/Del./2019 2 maintainable because assessee had not filed his original return of income u/s 139(1) & 139(4) or under the requisitions of the AO in compliance of notice u/s 148 or 142(1), therefore, in terms of provisions of section 249(4)(b) would apply to the present appeal and for the appeal to become eligible for getting admitted it would be a mandatory statutory requirement on the part of the assessee to deposit equal amount of the advance tax payable by the assessee. According to him, the assessee has not paid any advance tax in terms of provisions of sections 208 & 209 of the Act and, therefore, he has dismissed the appeal in limine holding that the appeal cannot be admitted for want of jurisdiction. 3. Before us, ld. counsel for the assessee submitted that the aforesaid observation of the findings of the ld. CIT (A) is incorrect because the assessee had filed the original return of income u/s 139(1) on 04.12.2009 for AY 2009-10 and he also filed copy of the said return before us. Not only that even in the statement of facts in Form 35, this fact has been duly mentioned. Therefore, there was no occasion to hold that the assessee has not filed any return of income or has not paid any admitted tax. Thus, the order of the ld.CIT(A) should be set aside and the matter should be remanded back to the file of the ld. CIT (A) to decide the appeal on merits. 4. Ld. DR for the Revenue admitted that if the return has been filed by the assessee and has paid the admitted tax as shown in the return of income, then the matter can be ITA No.1100/Del./2019 3 restored back to the file of the ld. CIT (A) to be decided afresh on merits. 5. On perusal of the impugned order, we find that firstly, ld. CIT (A) has in para 2 noted that none appears during the appellate proceedings even after serving of notice whereas in the cause title of his appellate order, the presence of Shri R.K. Gupta, FCA is recorded. Therefore, he proceeded on the assumption that assessee has not filed any return of income u/s 139(1)/139(4)/148 which is clear from para 10 of his order which reads as under :- “10. Admittedly, in the instant case the appellant has not filed the return of income either on its own under the provisions of section 139(1) or 139(4) of I.T. Act, 1961 or under the requisitions of the Ld. A.O. under section 148 or 142(1) of I.T. Act, 1961 and therefore, the provisions of Section 249(4) of I.T. Act, 1961 would apply to the present appeal and for the appeal to become eligible for getting admitted it would be a mandatory statutory requirement on the part of the appellant to deposit an amount equal to the advance tax payable by appellant.” 6. Thereafter, he written his comments on various sections and admissibility of the appeal in terms of scope of section 249 and held that appeal of the assessee cannot be admitted for want of jurisdiction. Such a finding is de hors the material placed on record. Firstly, nowhere the AO has held that the assessee has not filed any return of income originally or in pursuance of section 148. Secondly, in the statement of facts in Form 35, the assessee has clearly submitted that it has filed return of income. If the ld. CIT(A) has any doubt at least he should have clarified it from the ITA No.1100/Del./2019 4 assessee by giving a specific notice of query. Now, before us, ld. counsel has produced photocopy of income-tax return filed originally on 04.12.2009 for the impugned assessment year and also gave the details of taxes paid on the returned income. Thus, the findings of the ld. CIT (A) holding the appeal not admissible u/s 249(4)(b), is found to be incorrect. Accordingly, since ld. CIT (A) has not decided the appeal on merits, therefore, we remand back all the issues and grounds raised before us before the ld. CIT (A) to be decided on merits in accordance with law after giving due and effective opportunity of being heard to the assessee. Consequently, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 23 rd day of December, 2021. Sd/- sd/- (ANADEE NATH MISSHRA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated the 23 rd day of December, 2021 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-I, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.