Bal Kishan Tyagi, Noida V. ITO, Ward- 1(2), Noida

ITA 131/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7285 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 68; 208

Judgement Text

Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “SMC” BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.131/Del/2019 [Assessment Year : 2010-11] Bal Kishan Tyagi, Vill.-Sultanpur, Post-Gejha, Sector-128, Noida, Uttar Pradesh-201308 PAN-AFEPT3019H vs ITO, Ward-1(2), Noida. APPELLANT RESPONDENT Appellant by None Respondent by Sh. Om Parkash, Sr.DR Date of Hearing 20.01.2022 Date of Pronouncement 09.03.2022 ORDER PER KUL BHARAT, JM : This appeal filed by the assessee for the assessment year 2010-11 is directed against the order of Ld. CIT(A)-I, Noida dated 29.06.2018. The assessee has raised following grounds of appeal:- 1) “That the order of the Ld. Comm. of Income Tax (Appeals)- I hereinafter called CITA, in appeal no. 265/2017-18/Noida, is illegal, unjust, opposed to facts and suffers from the vice of arbitrariness. 2) That on facts of the case and in law, the Ld. CIT A has erred in confirming the addition of Rs. 15,00,000/-, made by the Ld. AO u/s 68 of The Act. Page | 2 3) That without prejudice to the above contentions, on facts of the case and in law, the assessment made is illegal since: a) Mandatory notice/assessment should be issued/made by his jurisdiction officer, i.e. Ward 5(1)(2) but in hurry, it is issued byWard-1(2), Noida. b) As the jurisdiction over the assessee was different, he not reply the notice. c) As the assessee income was below taxable limit for the said Assessment year, he had not file the return. The amount which was added by AO is advance received against sell of plot. d) The Ld. CIT(A) has dismissed the appeal On the basis that, assessee has not filed the return and jurisdiction has no matter. 4) That the illegal assessment be annulled and/or the illegal addition of Rs.15,00,000/- be deleted.” 2. At the time of hearing, no one appeared on behalf of the assessee. It is seen that the notice sent earlier was also received by the assessee but no one appeared on behalf of the assessee. Therefore, the appeal is taken up for hearing in the absence of the assessee. 3. Ld.Sr.DR submitted that Ld.CIT(A) dismissing the appeal on the ground that the provision of section 249(4) of the Income Tax Page | 3 Act, 1961 (“the Act”) is negatively worded and prohibits the decision by the Ld.CIT(A). 4. I have heard the Ld.Sr.DR and perused the material available on record and gone through the orders of the authorities below. I find that Ld.CIT(A) dismissed the appeal by observing as under:- 30. “There is no reason why the provisions of Section 249(4)(b) of I.T. Act, 1961 should not be constructed in the similar manner when the legislature has very specifically provided a window to protect the deserving cases. 31. It is therefore, held that the advance tax as provided under the provisions of Section 249(4)(b) of I.T. Act, 1961 is to be construed the advance tax liability with reference to the assessed tax and not any other quantum or amount. 32. In the instant case, the assessed income of the appellant was Rs.15,00,000/- on which tax and interest of Rs. 7,18,301/- was found to be payable by the appellant by the Ld. A.O. on the date of framing of the impugned assessment order. This amount of income of the appellant is well within the provisions of Section 208 read with Section 209 and 210 as the tax payable by the appellant is far in excess of the limit of Rs.10,000/- beyond which a tax payer is bound to pay advance tax in terms of the provisions of Section 208, 209 and 210 of I.T.Act, 1961 and therefore, for the appeal of the appellant to be admissible before this office the appellant was required to pay an amount equal to the advance tax which was payable by the appellant Page | 4 on an income of Rs.15,00,000/- and as admittedly, the provision of Section 249(4)(b) of the I.T.Act, 1961 has not been complied with, the appeal of the appellant cannot be admitted by this office and therefore, cannot be adjudicated no matter whatever be the grounds of law or grounds of facts as raised by the appellant. 33. The provisions of section 249(4) of I.T.Act, 1961 is negatively worded and prohibits the exercise of jurisdiction by the Commissioner (Appeals) unless the case of the appellant is found by the Commissioner (Appeals) on an application made by the appellant for the waiver of this condition and is allowed by the Commissioner (Appeals) for any good and sufficient reason to be recorded in writing by the Commissioner (Appeals). Therefore, the appeal of the appellant can be admitted either on payment of an amount equal to the advance tax payable by the appellant with reference to the assessed income of the appellant or in the alternate when the appellant is granted exemption from such a liability by this office on an application moved by the appellant for good and sufficient reasons which is to be recorded by this office in writing. 34. In the instant case, neither the appellant has deposited the requisite amount to the credit of the Government nor has moved such an application before this office. Therefore, the benefit of protection as available under the proviso appended below the provisions of Section 249(4) of I.T. Act, 1961 cannot be considered in the present case arid has not been granted either. In such a case the appeal of the appellant can be admitted only on payment of an amount equal to advance tax payable by Page | 5 appellant with reference to assessed Income of the appellant as determined by Ld. AO in the Impugned assessment order. 35. Therefore, the present appeal cannot be admitted for want of jurisdiction. The impugned assessment order is therefore, confirmed. The appeal of the appellant fails and is dismissed.” 5. Looking to the facts and findings of Ld.CIT(A), I am of the considered view that the assessee ought to have been given an opportunity for making submissions regarding admissibility of appeal. I therefore in the interest of principle of nature justice and to sub-serve the interest of substantive justice, hereby set aside the impugned order and restore the grounds of appeal to the Ld.CIT(A) to re-consider the grounds after giving adequate opportunity to the assessee. Thus, grounds raised by the assessee are allowed for statistical purposes. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 09 th March, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER *Amit Kumar* Page | 6 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI