Jitendra Veer Singh, Ghaziabad V. ITO ward-3(1), Bulandshahr

ITA 8853/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1400 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Non compliance
• Section: 147; 68; 148; 144; 142(1)

Judgement Text

1 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No. 8853/DEL/2019 [Assessment Year: 2011-12 Jitendra Veer Singh, Ch. No. 206-207, Ansal Satyam RDC, Rajnagar, Ghaziabad-201002 PAN- BJTPS3307M Vs Income-tax Officer, Ward-3(1), Bulandshahr. APPELLANT RESPONDENT Appellant by Sh. Akhilesh Kumar, Adv. Respondent by Sh. Om Prakash, Sr. DR Date of hearing 10.05.2022 Date of pronouncement 24.05.2022 O R D E R PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), Ghaziabad, dated 03.09.2019, pertaining to the assessment year 2011-12. The assessee has raised following grounds of appeal: “1. Because, order of ld. CIT(A) is bad in law and is against the facts and circumstances of the case. 2 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO 2. Because, ld. CIT(Appeals) erred in dismissing the appeal as non- maintainable on erroneous basis that assessee has not paid advance tax u/s 249(4). 3. Because, ld. CIT(A) failed to appreciate that in the absence of any income of agriculturist assessee, who sold joint ag. Land which is not a capital asset under the Act and amount deposited in the joint a/c with deceased mother are the proceeds of said land and as such neither any advance tax is payable by him nor he admitted so. 4. Because, ld. CIT(A) even failed to appreciate that case is framed u/s 144 without proper opportunity in the absence of receipt of notices and case of mother is closed by AO as such imposition of tax on total deposits is not only illegal, arbitrary but is against the facts.” 2. Facts, in brief, as brought out from the orders of authorities below are that in this case the Assessing Officer had received an AIR information that the assessee had made cash deposits amounting to Rs. 41,25,000/- in his saving bank account during the financial year 2010-11 relevant to assessment year 2011-12. The Assessing Officer required the assessee to explain the source of such cash deposits. In absence of any explanation from the assessee the Assessing Officer that source of cash deposits of Rs. 41,25,000/- remained unexplained. Thereafter, recording reasons u/s 147 of the Income-tax Act, 1961(“the Act”), with prior approval of Pr. CIT, the Assessing Officer issued notice u/s 148 of the Act which was duly served on the assessee. However, the same remained uncomplied with. According to the Assessing Officer there was no response on behalf of the assessee to the subsequent notices issued u/s 142(1) and 144 of the Act. Therefore, the Assessing 3 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO Officer proceeded to make the assessment ex parte qua the assessee and completed the assessment on the net taxable income of Rs. 41,25,000/-, by treating the cash deposits of Rs. 41,25,000/- as unexplained income of the assessee from undisclosed sources u/s 68 of the Act. 3. Aggrieved against it the assessee preferred appeal before the learned CIT(Appeals), who after considering the submissions, dismissed the appeal of the assessee in limine. Aggrieved against the order of learned CIT(Appeals) the assessee is in appeal before this Tribunal. 4. At the outset learned counsel for the assessee submitted that the orders passed by the authorities below are ex parte to the assessee. He contended that the appeal was dismissed in limine. He submitted that even the assessment has been framed ex parte to the assessee. Therefore, he contended that the issue may be restored to the file of the Assessing Officer for decision afresh. Further, learned counsel for the assessee submitted that under identical facts the Tribunal in the case of Vimal Kumar Tayal in ITA no. 6599/Del/2018 (order dated 04.04.2019), has restored the appeal to the file of the learned CIT(Appeals). Further reliance was placed on the decision of coordinate Bench in the case of Parmanand Sharma Vs. ITO rendered in ITA no. 3292/Del/2019 (order dated 13.03.2020). 4 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO 5. Learned Sr. DR opposed the submissions and supported the orders of authorities below. 6. I have heard rival submissions and perused the material available on record. Learned CIT(A) dismissed the appeal in limine by observing as under: “Examination of facts reveals that appellant has violated the provisions of section 249(4) wherein the appellant was required to pay the advance tax payable by him as no ITR has been fiied by him. The AO has also reported non compliance of provisions of section 249(4) by the appellant. In response to the show cause notice appellant merely requested to make the rectification in column 8 and 9 of Form 35 and arguing that ITR has never been filed as income was below taxable limits. The same is not a curable defect. No good and sufficient reason for exempting the appellant from the provisions of section 249(4)(b) has been given accordingly appeal preferred by him is being treated as non-est 3. In the result, the appeal is dismissed in limine.” 7. However, under identical facts, the coordinate Bench of this Tribunal in the case of Vimal Kumar Tayal in ITA no. 6599/Del/2018 has held as under: “3. The AR of the assessee relied on the decision of Pune Bench of the Tribunal in the case of Hotel Sai Siddi (P) Ltd. vs. DCIT reported in [2011] 13 taxmann.com 155 (Pune), wherein it was held that the CIT(A) should admit the appeal of the assessee and in case the assessee is able to establish the loss incurred for the year under consideration and he was not liable to pay tax of an amount equal to the amount of advance tax as stipulated under the provisions of section 249(4)(b) of the Act. In case it is found that the provisions of section 249(4)(b) are not applicable the appeal may be admitted and the same should be decided on merits. Therefore, he submitted that the matter should be remanded back to the file of the CIT(A) with the very same directions as given by the Pune Bench of the Tribunal in the case 5 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO of Hotel Sai Siddi P. Ltd. (supra).” 8. Further, the coordinate Bench of the Tribunal in the case of Parmanand Sharma Vs. ITO in ITA no. 3292/Del/2019 has held as under: “6. I have carefully perused the order of the first appellate authority qua the issues. I find that the CIT(A) has dismissed the appeal invoking the provisions of section 249 (4) (b) of the Act holding as under :- "However, this issue can be considered only when the appeal of the appellant is a competent one and based upon that is admitted by this office. The Ld. Counsel for the appellant in course of hearing on 04.10.2018 sought time to file application u/s 249(4)(b) of I.T. Act, 1961 but thereafter chose not to file that application and not to seek grant of an exemption from the mischief of Section 249(4)(b) which in any case is not available as a matter of right and is discretionary relief to be granted by the Commissioner (Appeals) for good and sufficient reasons and therefore the mischief of Section 249(4)(b) would operate against the appellant in all its might. Therefore, because of the non-compliance of the provisions of Section 249(4)(b) of I.T. Act, 1961; the appeal of the appellant is not competent to be admitted and therefore, none of these issues can be adjudicated in the present appeal. 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.” 7. In my considered opinion once the assessee alleged that his income is not taxable during the provisions of the Act there cannot be any obligation upon the assessee to pay advance tax. My view is fortified by the affidavit of the assessee filed before me. I find that the first appellate authority has not decided the appeal on merits of the case, therefore, in the interest of justice and fair play I deem it fit to restore the appeal to the files of the CIT(A). The CIT(A) is directed to decide the appeal afresh on the grounds raised before him after affording a reasonable and fair opportunity of being heard to the assessee.” 6 ITA no.8853/Del/2019 Jitendra Veer Singh Vs. ITO 9. In the light of the above binding precedence, I set aside the order of the learned CIT(Appeals) and restore the matter to the file of the learned CIT(Appeals) to decide the appeal after considering the explanation of the assessee regarding liability to pay advance tax as per section 249(4)(b) of the Act. 10. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in open court on 24 th May, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI