Appeal allowed as advance tax under section 249(4)(b) refers to undisputed income, not assessed tax liability

ITAT Pune allowed the assessee's appeal against CIT(A)/NFAC's dismissal for non-payment of advance tax under section 249(4)(b). The tribunal held that advance tax under section 249(4)(b) refers to tax payable by the assessee on undisputed admitted income, not assessed tax. Since the assessee's entire tax liability on declared income was already satisfied through TCS, no additional advance tax was required. The matter was remanded to CIT(A)/NFAC for adjudication on merits with directions to provide reasonable hearing opportunity.

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Issues Involved:
1. Non-admittance of appeal due to non-payment of advance tax u/s 249(4)(b).
2. Interpretation of section 249(4)(b) regarding advance tax payment.
3. Consistency in judicial decisions.

Summary:

Issue 1: Non-admittance of Appeal Due to Non-Payment of Advance Tax u/s 249(4)(b):
The learned CIT(A) dismissed the appeal on the ground that the assessee had not satisfied the condition of payment of advance tax as specified u/s 249(4)(b). The CIT(A) noted that the appellant failed to file a return of income and did not deposit the demand before filing the appeal. The appellant had also not provided any comments regarding the payment of advance tax in Form-35.

Issue 2: Interpretation of Section 249(4)(b) Regarding Advance Tax Payment:
The appellant argued that the condition of advance tax payment was not applicable as the taxes on the declared income were already paid through TCS. The Tribunal found that section 249(4)(b) requires the payment of advance tax on the undisputed income, not on the assessed income. The Tribunal agreed with the appellant's contention that the advance tax payable should be based on the admitted income, not the assessed income. The Tribunal noted that the appellant had already paid the tax on the admitted income through TCS, fulfilling the requirement of section 249(4)(b).

Issue 3: Consistency in Judicial Decisions:
The appellant highlighted that in a similar case involving a cousin, the CIT(A) had admitted and allowed the appeal on merits. The Tribunal emphasized the importance of consistency in judicial decisions and directed the CIT(A) to follow the same approach in the appellant's case.

Conclusion:
The Tribunal set aside the order of the CIT(A) and remanded the matter back to the CIT(A) with directions to admit the appeal for adjudication on merits. The Tribunal held that the appellant had fulfilled the requirement of section 249(4)(b) by paying the tax on the admitted income through TCS. The CIT(A) was directed to provide a reasonable opportunity of hearing to the appellant and pass an order as per facts and law. The appeal of the assessee was allowed for statistical purposes.

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