TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 516
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....t the assessee has not paid the tax of Rs. 5,03,22,060 on the income as per return filed in response to notice u/s. 153C. The 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 on 24.11.2017 in response to notice u/s. 153C as non-est. Accordingly the assessee proceeded to complete the assessment u/s. 144 by making the following additions- (i) Short term capital gains - Rs. 18,66,06,240 (ii) Long term capital gains - Rs. 1,18,90,000 (iii) Unexplained deposits - Rs. 1,16,28,191 (iv) Unexplained credit - Rs. 4,37,21,950 (v) Cash deposit - Rs. 76,000 3. The assessee filed an appeal before the CIT(A) against this order of the AO however the same was dismissed by the CIT(A). The assessee contested the order of CIT(A) before the Tribunal. The coordinate bench of the Tribunal set aside the matter back to the file of the CIT(A) vide order dated 22.07.2021 in ITA No. 1810/Bang/2019 with a direction to give an opportunity of being heard to the assessee on the issue of admitted tax. In the set aside proceedings the assessee submitted that the....
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....fore, the object of stipulating conditions such as demand of admitted tax is a condition precedent for entertaining the appeals and admitting the appeals is to see that the appellant obeys the law, Though the right of appeal is conferred under a statute, the said right is subjected to the restrictions imposed under the very same statute. There cannot be any absolute right de hors the provisions of the statute. 4.4 Keeping in mind, the object with which these provisions are introduced, once the assessee realises his obligations under the statute, the purpose with which these provisions in terrorem are introduced under the Act, obeys the statutory obligations, pays the tax, then he cannot be denied the right of appeal which the statute has provided to him. In the case under consideration, in response to notice under Section 153C of the Act, the appellant had filed her return of income on 24.11.2017, declaring an income of Rs. 11,82,60,329/-, thereby acknowledging her obligation to pay tax on the declared income. So even if the return of income was treated as non-est by the AO, her obligation to pay the tax did not diminish. In fact, in the appeal under consideration, as discussed s....
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....Hon'ble ITAT holding that the same is not maintainable having regard to the provisions of section 249[4][b] of the Act, the facts and in the circumstances of the appellant's case. 2.1 The learned CIT[A] is not justified in dismissing the appeal in-limine on the ground that the tax on the income returned in the return filed in response to notice u/s. 153C of the act, was not paid and therefore, the appeal is not maintainable u/s. 249[4][b] of the Act, under the facts and in the circumstances of the appellant's case overlooking the fact that there was no obligation to pay any advance tax in order to attract the disqualification u/s. 249[4][b] of the Act under the facts and in the circumstances of the appellant's case. 2.2 The learned CIT[A] ought not to have appreciated that the provisions of section 249[4][b] of the Act were totally inapplicable to the case of the appellant in as much as the appellant had challenged the entire income determined in the assessment order of Rs. 25,39,22,381/- vide Ground No. 4 raised before the learned CIT[A] and thus, there was no admission of any income as per the non-est return of income filed in response to notice issued u/s. 15....
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....,18,90,000/- [3] Unexplained credit in the bank accounts Rs. 1,16,28,191/- [4] Unconfirmed credits in the bank accounts Rs. 4,37,21,950/- [5] Unexplained cash deposits Rs. 76,000/- 6. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s. 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled. 7. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs." 6. The Ld. AR reiterated the submissions made before the CIT(A). The Ld. AR submitted that the AO in para 8 of his order has held that the return filed in response to notice u/s. 153C as non-est and therefore no tax liability exists for the income returned in the said income. Further the Ld. AR drew our attention to the Form 35 filed before the CIT(A) wherein the entire addition of Rs. 25,39,22,38....
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....t, 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. 9. From the above it is clear that the appeal before the CIT(A) shall not be admitted where the tax on the returned income is paid or in case where no return is filed the advance tax has not been paid. In assessee's case we notice that the CIT(A) has rejected the appeal by stating that the assessee's case fall within the purview of section 249(4)(b) and the assessee has not complied with the requirement under the proviso to the said section. This in our considered view is not correct since the assessee has already filed the return of income and therefore even if the appeal is not admitted on the ground of nonpayment of tax the same cannot be done in assessee's case u/s. 249(4)(b). Now coming to the issue of whether the assessee has paid the tax due on the income returned, the contention of the assessee is that the taxes are duly paid on the original income returned and there is no tax liability is due as per the retur....