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2023 (3) TMI 516 - AT - Income TaxNon-admission of appeal u/s. 249(4) - AO invoked the provisions of section 153C - AO treated the return as defective u/s. 139(9) and issued notice to the assessee to rectify the defect, since the assessee did not rectify the defect, the AO proceeded to treat the return filed in response to notice u/s. 153C as non-est - assessee submitted that there is no undisputed liability to pay tax since the return filed has been treated as non-est by the A - HELD THAT:- We notice that the coordinate bench of the Tribunal in the case M/s. Garden City Resorts Pvt. Ltd. [2016 (8) TMI 1587 - ITAT BANGALORE] has considered a similar issue where the assessee has filed the original return which was initially to be treated as return filed in response to notice u/s. 153C and tax on the returned income was duly paid. The assessee had later filed a revised return u/s. 153C and did not pay the tax on the revised income and held the assessee has already paid the taxes. The assessee has not paid the taxes on the revised return which was not treated to be valid by the AO and was non-est in law. Since the revised return was treated to be non-est in law, there was no question of making payment of tax on the income declared therein - assessee has already paid the tax on the admitted income declared in the original return filed which was acted upon by the AO for framing the assessment u/s.153C of the Act. In the light of these facts, we are of the view that the CIT(Appeals) was wrong in dismissing the appeal of the assessee. In the present case Assessee has filed the original return in which the tax on the income returned is duly paid. On perusal of Form 35 filed we notice that the assessee has disputed the entire amount including what is declared in the return filed in response to notice u/s. 153C which is considered as non-est by the AO and the additions made by the AO. We also see merit in the submissions of the Ld. AR that it is the disputed taxes that is not paid and the undisputed tax on the admitted income as per the original return have been duly paid. Therefore in our considered view the ratio laid down by the Hon'ble High Court and the coordinate bench of the Tribunal is applicable to assessee's case. Accordingly we set aside the order of the CIT(A) and restore the matter to the CIT(A) with a direction to re-adjudicate the appeal on merits. Needless to say that the assessee be given a reasonable opportunity of being heard. Assessee's appeal is allowed for statistical purposes.
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