JASBIR KUMAR, LEGAL HEIR OF SH. KISHNA (DECEASED),YAMUNA NAGAR, HARYANA V. INCOME TAX OFFICER, WARD-1, YAMUNA NAGAR, HARYANA, YAMUNA NAGAR, HARYANA

ITA 195/CHANDI/2024

AI Insights

The case involves Jasbir Kumar, the legal heir of Shri Kishna, who appealed against the orders of the Commissioner of Income Tax (Appeals) for the assessment year 2012-13. The appeals were related to a quantum assessment order under Section 147 read with Section 144, and a penalty order under Section 271(1)(c) of the Income Tax Act. The primary contention was the dismissal of the quantum appeal by CIT(A) due to non-payment of taxes, which the Tribunal found to be an incorrect application of Section 249(4)(b). The Tribunal referenced several precedents where similar situations were adjudicated differently, leading to the decision to set aside the CIT(A)'s orders and remand the cases for fresh consideration on their merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 35597 (ITAT-CHANDIGARH)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Other Referred Cases: Ritika Jain Vs ITO ITA 168/Agra/2023, Vishnusharan Chandravanshi Vs ITO reported in 161 taxmann.com 803, Balwinder Singh Vs ITO 163 taxmann.com 599 (Amritsar Bench), Pushpendra Singh Vs ITO ITA 122/Indore/2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK VARDHAN
• Assessee Lawyers: B.M. MONGA; ROHIT KAURA; ADVOCATES
• Keywords: Set aside
• Section: 147; 144; 195; 271(1)(c)

Judgement Text

"आयकर अपील य अ\u000bधकरण,च\u0010डीगढ़ \u0014यायपीठ, च\u0010डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, ‘A’ CHANDIGARH BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI KRINWANT SAHAY, ACCOUNTANT MEMBER आयकर अपील सं./ ITA Nos. 195 & 196/CHD/2024 \rनधा\u0011रण वष\u0011 / Assessment Year : 2012-13 Jasbir Kumar, Legal Heir of Shri Kishna(Deceased), Village-Hundewala, Tehsil-Jagadhri, Distt. Yamuna Nagar. Vs The ITO, Ward – 1, Yamuna Nagar. \u0016थायी लेखा सं./PAN NO: IJNPK7099R अपीलाथ\u001a/Appellant \u001b\u001cयथ\u001a/Respondent Assessee by : Shri B.M.Monga & Shri Rohit Kaura, Advocates Revenue by : Shri Vivek Vardhan, Addl.CIT, Sr.DR Date of Hearing : 04.02.2025 Date of Pronouncement : 05.02.2025 PHYSICAL HEARING O R D E R PER RAJ PAL YADAV, VP The assessee is in appeal against the separate orders of the Commissioner of Income Tax (Appeals) [in short ‘the CIT (A)’] dated 18.12.2023 passed in assessment year 2012-13. 2. It is pertinent to note that ld. First Appellate Authority has decided two appeals, one pertains to quantum appeal which was filed against an assessment ITA No.195 & 196/CHD/2024 A.Y.2012-13 2 order passed under Section 147 read with Section 144 and the second against a penalty order dated 03.02.2022 whereby the AO has imposed a penalty under Section 271(1)(c) of the Act. The ld. CIT(A) has issued separate numbers for both the orders. 3. We first take quantum appeal i.e. ITA No. 195/CHD/2024. The ld. Counsel for the assessee, at the very outset submitted that ld. CIT(A) has dismissed the appeal with the help of Section 249(4)(b) of the Income Tax Act. He pointed out that assessee did not file the return of income. The AO has reopened the assessment and issued a notice under Section 148 of the Income Tax Act. Thereafter, he passed an ex-parte assessment order on 23.12.2019. The ld. AO has determined the taxable income at Rs.58,29,000/-. The ld. Counsel for the assessee further pointed out that Section 249(4) contemplates that an appeal of the assessee would not be entertained by the CIT(A) unless assessee had paid the tax on the agreed income. In other words, if an assessee has filed a return declaring income under Section 139(1), then on that ITA No.195 & 196/CHD/2024 A.Y.2012-13 3 income assessee ought to have paid the taxes. In the present case, since assessee has not paid the taxes, therefore, the demand by virtue of the income determined by the AO would not be construed as an liability to pay advance tax and on non payment of such taxes, appeal of the assessee is to be construed as not maintainable. This is an incorrect approach of the CIT(A). For buttress the contention, he relied upon four orders of the ITAT namely; Ritika Jain Vs ITO ITA 168/Agra/2023, Vishnusharan Chandravanshi Vs ITO reported in 161 taxmann.com 803 and in the case of Balwinder Singh Vs ITO 163 taxmann.com 599 (Amritsar Bench) and that of ITAT Indore in the case of Pushpendra Singh Vs ITO ITA 122/Indore/2024. Copies of all these orders are placed on record by the ld. Counsel for the assessee. On the strength of these decisions, ld. Counsel for the assessee contended that impugned orders of the CIT(A) be set aside and appeals be restored to the file of CIT(A) for deciding on merit afresh. ITA No.195 & 196/CHD/2024 A.Y.2012-13 4 4. The ld. Sr.DR, on the other hand relied upon the orders of the ld. CIT(A). 5. We have duly considered the rival contentions and gone through the record carefully. We find that verbatim identical situation arose before the Tribunal in the above four orders and issue is squarely covered in favour of the assessee by the decisions rendered by various Benches of the ITAT. It is pertinent to note that assessee is disputing the very demand raised by the AO. It is not exactly ascertainable whether any demand which could be construed as an advance tax liability is really assessable in the hands of the assessee or not. The AO has passed an ex-parte order. The ld. CIT(A) ought to have given a chance to the assessee for claiming exemption from invoking of Section 249(4)(b) or CIT(A) ought to have suo-moto exempted the assessee from implication of this Section and should have decided the appeal atleast on merit. On due consideration of the above facts and circumstances, we deem it appropriate to set aside the impugned order of the ITA No.195 & 196/CHD/2024 A.Y.2012-13 5 ld. CIT(A) and restore the appeal to the ld. CIT(A) for adjudication on merit. 6. As far as penalty appeal is concerned, we are of the view that until and unless the quantum additions are being decided, penalty appeal cannot be taken up for hearing. The simple reason is that computation of penalty is always dependent upon the determination of total undisclosed income of the assessee. In other words, sub-clause (iii) of Section 271(1)(c) of the Act provides the method of computation of penalty which is to be levied upon the assessee under Section 271(1)(c) of the Act. It provides that in addition to tax, if any payable by an assessee, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or furnishing of inaccurate particulars of such income. Thus, it is yet to determine whether any tax is required to be paid by the assessee in addition to the income, if any declared by him. This would indicate that first the determination of tax liability is to be achieved and thereafter computation of ITA No.195 & 196/CHD/2024 A.Y.2012-13 6 penalty could be made. Therefore, we set aside the impugned order passed in the penalty appeal and restore this issue to the ld. CIT(A) for fresh adjudication. The penalty appeal will be decided by the CIT(A) after adjudication of the quantum appeal. 7. In the result, both the appeals are allowed. Order pronounced on 05.02.2025. Sd/- Sd/- (KRINWANT SAHAY) (RAJPAL YADAV) ACCOUNTANT MEMBER VICE PRESIDENT “Poonam” आदेश क\u0002 \u0003ितिलिप अ\tेिषत/ Copy of the order forwarded to : 1. अपीलाथ\u000f/ The Appellant 2. \u0003\u0010यथ\u000f/ The Respondent 3. आयकर आयु\u0014/ CIT 4. िवभागीय \u0003ितिनिध, आयकर अपीलीय आिधकरण, च\u0018डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड\u001c फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar "