TMI Blog2017 (4) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... s the defense put up by the appellant is that the non-payment of admitted tax on returned income is a curable defect and once such a defect has been cured, there is enough justification for the appeal being admitted by the CIT(A). Since the assessee has claimed that it has paid tax on the returned income before passing of order by the CIT(A), in our view, it will be in the fitness of things that the matter is remitted back to the file of CIT(A) to be considered afresh. Assessee has made a tabulation showing payment of tax on various dates and also challans evidencing the payment of admitted tax. We deem it fit and proper to remit the matter back to the file of CIT(A) who shall verify whether the entire admitted tax has been paid and if it is so found, he shall proceed to decide the various Grounds raised by the assessee on merits. - ITA NOS. 1222 & 1223/MUM/2012, ITA NOS. 1496, 1497 & 1495/MUM/2012 - - - Dated:- 28-4-2017 - SHRI G.S. PANNU, ACCOUNTANT MEMBER, AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri Piyush Chhajed For The Revenue : Shri N.P. Singh (CIT-DR) ORDER PER G.S. PANNU, AM : The captioned five appeals relate to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys that the order of Commissioner of Income-tax (Appeal) on the above ground be set aside and that of the Assessing Officer be restored. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary. ITA No. 1497/Mum/2012 (A.Y : 2006-07) :- 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in holding that investment in flat 202 Shabnam Apartment are not made by the assessee and are made by firm M/s Sarang Associates and hence no addition can be made in the hand of the assessee on account of unexplained investment in this property. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in deleting addition of ₹ 20,50,000/- made on account of unexplained investment in flat no. 202 Shabnam Apartment without appreciating the fact that investment has been made in the name of the individual and not in the name of firm. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the addition of ₹ 2,64,000/- made on account of deemed rent from Janjira Bungalow and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 8. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: (a) Where the Constitutional validity of the provisions of an Act or Rule are under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts. 9. The monetary limits specified in para 3 above shall not apply to writ matters and direct tax matters other than Income tax. Filing of appeals in other Direct tax matters shall continue to be governed by relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Considering the facts and circumstances of the case, the CIT(A) erred in facts and in law in confirming an addition of ₹ 480000 on account of low withdrawals and the same ought to be deleted 4. Considering the facts and circumstances of the case, the CIT(A) erred in facts and in law in confirming an addition of ₹ 7993024 u/s 68 of the Income Tax Act, 1961, (hereinafter, for the sake of brevity, referred to as the Act ) on account of unsecured loan of the appellant. 5. Considering the facts and circumstances of the case, the CIT(A) erred in facts and in law in confirming an addition of ₹ 664000 as deemed rent of residential flats and the same ought to be deleted. 10. In this appeal, the first and the foremost grievance of the assessee is that the CIT(A) has erred on facts and in law in dismissing the appeal as unadmitted by wrongly invoking the provisions of Sec.249(4) of the Act. 11. In this context, the relevant facts are that the appellant is an individual in whose case a search action u/s 132(1) of the Act was carried out on 24.2.2009. For the assessment year under consideration, i.e., 2008-09, assessee had not filed its regular return u/s 139 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2015] 57 taxmann.com 439 (Karnataka) and sought to draw an analogy and contended that the return referred to in Sec. 249(4) of the Act ought to be a valid return and not a return which is non-est in the eyes of law. Thus, according to the learned representative, it is the return filed by the assessee on 18.11.2009 declaring total income of ₹ 1,55,11,800/- which is the correct return to be considered while considering the applicability of Sec. 249(4) of the Act. With reference to the tax due on the income declared in the return filed on 18.11.2009, the learned representative has furnished a statement showing payment of taxes on various dates according to which, the appellant has paid in excess of the tax payable on the returned income before the passing of order by CIT(A) on 13.12.2011. It is pointed out that even after the passing of the order of CIT(A), assessee has made a further payment of ₹ 13,00,000/- and that till date, tax of ₹ 97,81,518/- has been paid, which is more than the tax on the returned income determined at ₹ 52,14,678/-. Accordingly, it is contended that the order of CIT(A) be set-aside and the matter be restored back to his file for adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der these circumstances, if one has to examine the validity of the revised return filed on 12.11.2010, then, in terms of Sec. 139(5) r.w.s. 153A(1)(a) of the Act, it has to be examined as to whether the original return, which is sought to be revised, was filed within the period specified or not? Ostensibly, the fact-situation shows that no return has been filed in pursuance of Sec. 139(1) of the Act and even the return filed in response to notice u/s 153A of the Act is belated and, therefore, under these circumstances, the revised return filed on 12.11.2010 is not in consonance with the requirements of Sec. 139(5) of the Act. Under these circumstances, we find enough justification in the plea of assessee that the revised return filed on 12.11.2010 is non-est in the eyes of law and the same is not relevant for the purpose of examining the applicability of Sec. 249(4)(a) of the Act. At this stage, we may refer to the judgment of the Hon'ble Karnataka High Court in the case of K. Nagesh (supra) wherein the issue related to refund of tax and interest due to the assessee having regard to Sec. 240 of the Act. In the context of Sec. 240 of the Act, the Hon'ble High Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered afresh. Before us, the learned representative for the assessee has made a tabulation showing payment of tax on various dates and also challans evidencing the payment of admitted tax. We deem it fit and proper to remit the matter back to the file of CIT(A) who shall verify whether the entire admitted tax has been paid and if it is so found, he shall proceed to decide the various Grounds raised by the assessee on merits. Needless to mention, the CIT(A) shall allow the assessee a reasonable opportunity of being heard and thereafter pass an order afresh, as per law. In the result, insofar as Ground of appeal no. 1 is concerned, the same is treated as allowed for statistical purposes. 16. Insofar as Ground of appeal nos. 2 to 5 are concerned, same relate to merits of the additions, which are also being restored back to the file of CIT(A), as same have not been addressed by him since the appeal of assessee was dismissed by the CIT(A) in limine. 17. Resultantly, appeal of assessee for Assessment Year 2008-09 is partly allowed for statistical purposes. 18. At the time of hearing, it was a common point between the parties that the facts and circumstances in ITA No. 1223/Mum/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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