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TMI Blog2024 (7) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income Tax (Appeals) erred in dismissing the appeal as 'not admitted' on account of failure to pay advance tax, in a case where return of income has not been filed. 3) The learned Commissioner of Income Tax (Appeals) ought to have appreciated that this is a case where the appellant is of the bonafide belief that there is no liability to tax and to expect the appellant to pay tax equivalent to advance tax on assessed income is far-fetched. 4) Without prejudice to the above, dismissing the appeal as 'not admitted' without opportunity of rebutting his findings is against principles of natural justice.." 2. None has appeared on behalf of the assessee however, an application for adjournment of hearing is filed. At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent 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 ITA No. 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 ITA No. 122/Ind/2024 vide order dated 24.06.2024 in para 7 & 8 as under: "7. We have considered the rival submissions as well as relevant material on record. The Assessing Officer initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can thus be seen that the CIT(A) had no occasion to examine the merits of the impugned additions. 5. We have heard parties. Perused record. It can be seen that the case was Initially selected for scrutiny, which was completed on 29.03.2015, and there was no change in the returned income of Rs. 51.80.800/- in the absence of any additions being made. It is a matter of record that originally the return was filed for the relevant year under consideration on 29.09.2012. It was not disputed during the course of hearing that the advance tax has per the assessed income of Rs. 51,80,800/- has been paid. Here is the case of reassessment which is done for the benefit of Revenue. Hence, in our view, clause (b) of Section 249(4) of the Act will not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause." The CIT(Appeals) observed that as the assessee who had not filed his return of income had neither paid an amount equal to the amount of advance tax which was payable by him; nor filed any application seeking exemption from operation of the aforesaid statutory provision for any good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. Thus, this Tribunal has taken a consistent view and held that for filing the appeal before the CIT(A) against the reassessment order passed by the AO the question for payment of advance tax by the assessee as per clause (b) of sub-section (4) of section 249 of the Act does not arise. Accordingly this issue is now covered by the earlier decisions of this tribunal and consequently the impugned order of the CIT(A) is set aside being contrary to the provisions of law. Since the assessment order was also passed ex-parte due to non-appearance of the assessee therefore, in the facts and circumstances of the case when the CIT(A) has not adjudicated appeal of the assessee on merits the matter is remanded to the record of the jurisdictional AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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