9911796707
TMI Blog2024 (7) TMI 1631X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Without prejudice to the above, The Learned Assessing Officer is not correct in holding agriculture land as Capital Asset and not correct in adding sum of Rs. 52,41,028/- as Long Term Capital Gain on Sale of Agriculture Land. (iv) Without prejudice to the above, the Learned Assessing Officer is also not correct to disallow claim of section 54B of the Act as the assessee has purchased Agriculture Land within two years." 3. The facts of the case are that assessment u/s 147 of the Act was framed in the case of the assessee, noting that the assessee had sold an immovable property (land) for Rs.57,55,000/- and no return of income had been filed by the assessee. The assessee's explanation that the land sold by it was not a capital asset being rural agricultural land was rejected by the Assessing Officer. The assessee's alternate contention that he was entitled to benefit of exemption u/s 54B of the Act for investing the capital gains so earned in the purchase of another agricultural land was also rejected by the Assessing Officer and in turn Long Term Capital Gain earned by the assessee was computed by the Assessing Officer at Rs.52,41,028/- and, subjected to tax, adding it to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee. He, therefore, stated that admittedly the assessee had filed his return of income and the first condition for invoking the provisions of Section 249(4)(b) of the Act, therefore, was not satisfied. 7.2 He, thereafter, stated that the ld. CIT(A) had found the assessee to have not paid advance tax considering the assessed income of the assessee noting the provisions of section 234B of the Act, while the liability for payment of advance tax had was to be determined in terms of Section 209 of the Act. 7.3 He drew our attention to the order of the ld. CIT(A) at paragraph No.3.3, wherein he had referred to the provisions of Section 234B(1) of the Act and Section 208 of the Act, and held that the assessee's liability to pay advance tax was to be determined in terms of its assessed income, and since the liability of tax to be paid by the assessee on his assessed income amounted to approximately Rs.11 lakhs, the assessee was liable to pay advance tax. Our attention was drawn to paragraph Nos. 3.3 to 4 of his order as under:- "3.3. As per provisions of section 234B(1), read with provisions of section 208 of the Act, the liability to pay advance tax, in a case where retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot offered 'YES' comments at sl. No. 9 of Form- 35, it was asked vide DIN & letter no. ITBA/NFAC/F/APL_1/2023- 24/1057762204(1) dated 07.11.2023 to intimate whether it has made payment of tax-which includes element of advance tax also in compliance to notice of demand u/s 156 of the Act and date of compliance was fixed for 15.11.2023 but the appellant failed to contradict the information given at sl. no. 9 of Form- 35 and to prove that it has made payment of amount equal to the advance tax which was due on its income. It is, therefore, clear that information, given at sl. no. 9 of Form-35 is correct and the appellant has not made payment of amount equal to the advance tax which was due on its income. 4. Since the appellant has not filed return of income as well as not paid an amount equal to the amount of advance tax which was payable by it, present appeal is not liable to be admitted. The appeal is infructuous and is, therefore, dismissed. 8. The ld. Counsel for the assessee pointed out that the computation of advance tax was provided in Section 209 of the Act, to which our attention was drawn as under:- "Computation of advance tax. 209. (1) The amount of advance ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of one per cent for every month or part of a month comprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub-section (1) of section 143 and where a regular assessment is made, to the date of such regular assessment, on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. 9.1 It was contended, therefore, that in terms of the provisions of Section 234B of the Act also the assessed tax was not the basis for arriving at the advance tax liability of the assessee. Ld. Counsel for the assessee stated that therefore, the matter needs to be restored back to the ld. CIT(A) since he had dismissed the assessee's appeal as infructuous, on an incorrect interpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fference between the advance tax liability and the assessed tax liability. Therefore, reliance placed by the ld. CIT(A) on the provisions of Section 234B(1) of the Act for holding that the assessed tax liability was the advance tax liability of the assessee is incorrect. The ld. Counsel for the assessee has, on the contrary, drawn our attention to the provisions of Section 209 of the Act which provided for computation of advance tax liability as reproduced above in the earlier part of our order. Since we have noted that the ld. CIT(A) has, on an incorrect interpretation of law, held the assessee to have not discharged his advance tax liability, for the purposes of dismissing the appeal as infructuous in terms of provisions of Section 249(4)(b) of the Act, we consider it fit to restore the issue back to the ld. CIT(A) for reconsideration of both the aspect of admitting the appeal in terms of the provisions of Section 249(4) of the Act and, if considered fit for admission,to deal with the merits of the grounds raised by the assessee. 11.4 In view of the above, the appeal of the assessee is allowed for statistical purposes. All the grounds raised by the assessee are allowed for stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
