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TMI Blog2024 (7) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant to present his case. 4. The Id CIT(A) was not justified in not deciding the grounds of appeal before him. 5. Without prejudice, the Id CIT(A) ought to have decided the various grounds of appeal. 6. The Id. CIT(A) was not justified in confirming the addition of Rs. 6.00,000/- towards the unexplained investment in MCX trading. 7 The Id. CIT(A) was not justified in confirming the addition of Rs. 3,00,000/- as estimated income which was adhoc." 2. Ld. AR of the assessee has submitted that the CIT(A) has dismissed the appeal of the assessee in limine as not admissible for want of payment of advance tax as per provisions of section 249(4)(b) of the Act. The assessee did not file any return of income u/s 139 of the Act as the income of the assessee was below the taxable limit. The AO has re-opened the assessment on the basis of CIB information of transaction made in Multi Commodity Exchange (MCX). The AO has estimated the minimum unexplained investment at Rs.6 lac and further estimated the income at Rs.3 lac resulting total income assessed at Rs.9 lac. Thus, the Ld. AR has submitted that when the assessee has not filed any return of income due to non-taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income and therefore, there is no question of any self-assessment tax or advance tax payable by the assessee. Further the AO has estimated the income of the assessee at Rs.3 lac and addition of Rs.6 lac has been made as unexplained investment. Therefore, it is only a case of estimation of income and not a case of undisclosed income or income assessable to tax as escaped assessment revealed by some material. Carrying out the transactions in Multi Commodity Exchange (MCX) does not ipso facto lead to the conclusion that the assessee has earned income as it may be a case of loss or no income. This tribunal has taken a consistent view on this point that the income assessed by the AO in the reassessment proceedings does not attract provisions of section 249(4)(b) of the Act. In the latest decision this Tribunal in case of Ramdas Yadav vs. ITO in ITANo.163/Ind/2024 vide order dated 27.06.2024 held in para 4.1 as under: "4.1 Thus, the appeal was dismissed in limine as not admissible for want of payment of advance tax u/s 249(4) of the Act. At the outset, we note that an identical issue has been considered by this Tribunal in case of Shri Pushpendra Singh Chouhan vs. ITO in ITANo.122/Ind/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act will not apply as there is no question of paying advance tax in reassessment proceedings, even though assessee did not file Rol. 6. In the said circumstances, we find that the impugned order dismissing the appeal on the ground of non-compliance of Section 249(4) of the Act cannot be sustained and deserves to be set-aside". In the case in hand the assessee has filed return of income and thereafter, the Assessing Officer has initiated reassessment proceedings and passed reassessment order. Therefore, for filing the appeal before CIT(A) the question of payment of advance tax by the assessee as per clause(b) of Sub Section 4 of Section 249 does not arise. Similarly the Raipur Bench of the Tribunal in case of Vishnusharan Chandravanshi Vs. ITO in ITA No.73/RPR/2024 order dated 10.04.2024 has also considered the identical issue in para No.10 to 15 as under: 10. Admittedly, it is a matter of fact borne from record that the assessee had neither filed his return of income u/s 139 of the Act nor in compliance to notice issued to him u/s. 142(1) of the Act, dated 10.03.2018. As the assessee had failed to file his return of income, the CIT(Appeals) had brought his case wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (4) of Section 249 of the Act would stand triggered only where any obligation was cast upon the assessee to pay "advance tax". As stated by the Ld. AR, and rightly so, in absence of any taxable income for the year under consideration [as was stated by him in the "SOF" filed before the CIT(Appeals)] no obligation was cast upon him to compute and pay any advance tax u/ss. 208 & 209 of the Act. Considering the fact that as no obligation was cast upon the assessee to compute/deposit any amount towards "advance tax' for the subject year, I am unable to concur with the view taken by the CIT(Appeals) who dismissed the appeal as not maintainable for the reason of non-compliance off mandatory condition contemplated in Clause (b) of sub-section (4) of Section 240 the Act. Although, at the first blush, I was of the view that the amount assessee the A.O vide his order u/s. 144 of the Act dated 23.11.2019 of Rs. 10 lacs would saddle the assessee with an obligation to pay "advance tax", but stood corrected a careful perusal of Section 208 and Section 209(1)(a) of the Act, which contemplates determination of the said tax liability at the behest of the assessee. 14. As in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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