Dhansukhbhai Mulchandbhai Patel, Surat V. ITO, Ward-2(3)(1), Surat

ITA 495/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 4912 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-07-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 28-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER ITA No. 495/Srt/2024 (Assessment Year 2013-14) (Physical hearing) Dhansukhbhai Mulchandbhai Patel, Patidar Faliya, Nr. Umiya Apartment, Bhestan, Surat-395023. PAN No. BZLPP 0460 Q Vs. I.T.O., Ward- 2(3)(1), Aayakar Bhawan, Majura Gate, Surat. Appellant/ assessee Respondent/ revenue Assessee represented by Shri P.M. Jagasheth, CA Department represented by Shri Vinod Kumar, Sr. DR Date of Institution of Appeal 29/04/2024 Date of hearing 24/07/2024 Date of pronouncement 14/08/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the ex-pate order of learned National Faceless Appeal Centre, Delhi (NFAC)/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 09/02/2024 for the Assessment Year (AY) 2013-14. 2. Rival submissions of both the parties have been heard and record perused. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that there is delay of 20 days in filing appeal before Tribunal. The assessee has filed application for condonation of delay. The ld AR of the assessee submits that the ld. CIT(A) passed the order on 09/02/2024. The assessee has no knowledge about passing of the order. No physical copy of order was served. The assessee came to know and he visited the office of his ITA No. 495/Srt/2024 Dhansukhbhai Mulchandbhai Patel Vs ITO 2 authorized representative and came to know about the order in the month of April, 2024 and appeal was filed immediately. The delay in filing appeal is neither intentional nor deliberate but due to the bonafide reasons explained above. The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed if one more opportunity is provided to him. The ld AR for the assessee submits that there is sufficient cause for condoning the delay. The ld AR of the assessee prayed to condone the delay. 3. On merit of the case, the ld. AR of the assessee submits that the appeal of assessee was dismissed as unadmitted by the ld. CIT(A) by taking view that the assessee has not deposited payment of tax equal to amount of advance tax as per Section 249 (4)(b) of the Income Tax Act, 1961 (in short, the Act). The ld. AR of the assessee submits that the assessee was not having any taxable income, thus, there was no occasion for assessee either to file return of income or to make payment of advance tax. To support his submission, the ld. AR of the assessee relied upon the following decisions:  Dineshbhai Vallabhbhai Kabariya Vs ITO, in ITA No. 179/Srt/2024 dated 30/05/2024  Sumeet Jagdishpraad Pareek Vs ITO, in ITA No. 350/Srt/2024 dated 04/07/2024 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that the assessee has not disclosed reasonable cause for condoning the delay in filing appeal. The assessee is relying on self- serving story. On merits, the ld Sr DR for the revenue submits that in case, the Bench is convinced that the assessee was not given fair and reasonable ITA No. 495/Srt/2024 Dhansukhbhai Mulchandbhai Patel Vs ITO 3 opportunity, the matter may be restored to the file of Assessing Officer with the direction to assessee to be more vigilant in making compliance in time. 5. We have considered the submissions of both the parties and perused the material on record carefully and have also gone through the contents of application of condonation of delay. We have also deliberated on the decisions relied upon by the ld. AR of the assessee. Considering the facts of the case and the contents made in the condonation of delay, that the assessee came to know about passing of the impugned order only in April 2024 and the appeal was filed immediately. We find that there is not inordinate delay in filing appeal. The delay is only of 20 days. Further, we find that the delay in filing appeal is not intentional nor deliberate, therefore, the delay in filing appeal is condoned. Now adverting to the merit of the case. 6. We find that the assessee has not filed return of income nor paid equal to the advance tax which was payable by assessee. The assessment was completed by Assessing Officer (AO) under Section 144 r.w.s 147 of the Act by making addition of Rs. 34,12,500/-. The ld CIT(A) dismissed the appeal in limine for non-compliance of section 249(4)(b). We find that on similar set of facts, our combination in Sumeet Jagdishprasad Pareek Vs ITO (supra) by following decision of Coordinate Bench, passed the following order: “5. We have heard both the parties and perused the materials available on record. We have also deliberated on the decisions relied upon by Ld.AR of the assessee. Since the assessee has not filed ROI as well as not paid an amount equal to the advance tax which was payable by it, the appeal was not admitted by the Ld.CIT(A). It may be stated that if tax is being paid for same financial year based on estimated income, it would be advance tax. If tax is being paid after end of financial year, it ITA No. 495/Srt/2024 Dhansukhbhai Mulchandbhai Patel Vs ITO 4 would be self-assessment tax. When Department finds that there has been underassessment of income and resultant tax is due, it computes the actual amount that ought to have been paid. This demand raised on the person is called tax on "regular assessment". Tax on "regular assessment" is the tax which the taxpayer is required to pay against of notice of demand from the Income-tax Department, normally u/s 156 of the Act. The Ld.CIT(A) dismissed appeal of assessee as non-maintainable because the assessee had not paid an amount equal to the advance tax, which was payable by it. The Ld.AR has contended that the assessee did not pay any advance tax as the income was below taxable income as per its books of account. When total income is below taxable income during the year, question of payment of advance tax does not arise and provisions of Section 249(4)(b) of the Act are not applicable. We find that similar issue had come up for consideration before this Bench in ITA No.646/SRT/2023 in the case of Ranajitbhai B Patel vs. ITO dated 28.11.2023, where following the decision of co-ordinate Benches of Pune in the case of Hotel Sai Siddi (P.) Ltd. vs. DCIT (2011) 13 taxmann.com 155 (Pune), it was held that when the assessee had incurred loss while filing ROI and was not liable to pay tax an amount equal to amount of advance tax as required u/s 249(4)(b), the assessee's appeal was liable to be admitted. Following the ratio of the decision cited above and keeping in view that assessee was claiming that it had no taxable income, the Tribunal restored the case back to the file of Ld.CIT(A) with a direction to admit the appeal of the assessee and pass an order on merit. Facts of the present case of the assessee are similar to the fact of the case cited above. In this case, assessee has shown total income which is below taxable limit. Therefore, he was not liable to pay any advance tax. The demand u/s 156 of the Act was in case of the assessee for regular assessment tax. Therefore, following the above decision, we hold that the Ld.CIT(A) should have decided the issue on merits of the case. Since the AO has completed the assessment u/s 144 of the Act, considering the facts of the case and in the interest of justice, we are remitting the matter back to the file of AO for making fresh assessment order. He shall grant adequate opportunity of being heard to assessee. The assessee is also directed to comply with the notices issued by the AO and not to seek any adjournment without valid reason. For statistical purposes, the appeal of the assessee is treated as allowed.” ITA No. 495/Srt/2024 Dhansukhbhai Mulchandbhai Patel Vs ITO 5 7. Considering the aforesaid decision of this combination, we find that the ld. CIT(A) should have decided the issue on merit. We further find that the assessment was completed under Section 144 of the Act, therefore, considering the fact and circumstances of the case and the interest of justice, the matter is restored back to the file of Assessing Officer to pass the order afresh after giving reasonable and fair opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay by seeking adjournment without any valid reason and to furnish all the details and his submissions and evidences on various grounds of appeal raised, as soon as possible, if so desired without any further delay. In the result, the grounds of appeal raised by the assessee are allowed for statistical purposes. 8. In the result, this appeal of assessee is allowed for statistical purpose. Order announced in open court on 14 th August, 2024. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 14/08/2024 *Ranjan Copy to: 1. Assessee – 2. Revenue – 3. CIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat