TaxTMI 
TaxTMI 
2024 (6) TMI 273
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....98 assessed by the A.O. was disputed by the assessee in appeal and hence, the provisions of section of section 249(4)(b) cannot be interpreted in a manner to compel the appellant to pay advance tax on the entire disputed income before filing appeal merely because the appellant had not filed a valid ITR for A.Y.2017 - 18. 3] The learned CIT(A) erred in not appreciating that the provisions of section 249(4)(b) mandate that the (advance) tax liability on the undisputed income must be deposited prior to filing appeal and the interpretation as sought to be placed by CIT(A) would result into absurd results of making the appellant liable to deposit tax on entire disputed income in a case of a high pitched asst. and hence, the said provisions ought to be interpreted liberally to ensure that the right of appeal guaranteed by Legislature is not deprived to the citizens. 4] The learned CIT(A) ought to have appreciated that interpretation to section 249(4)(b) adopted by the CIT(A) was also contrary to the mandate of CBDT Instruction No. 1914 as modified by CBDT Office Memorandums dated 29.02.2016 and 31.07.2017 which stipulate recovery of 20% of disputed demand without providing any except....
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.... the assessee in limine by observing as under :- "3.1 I have examined facts of the case as also gone through relevant provisions of Income Tax Act (the Act). In the present case, the appellant failed to file return of income. The impugned order was passed u/s 144 of the Act, creating demand of Rs. 12,36,079/- and the appellant was asked by notice u/s 156 of the Act to deposit the demand but it is noticed that the appellant has not deposited the demand before filing of this appeal. The appellant has at sl. No.16 of Form-35, stated to have made payment of appeal fee of Rs. 1,000/- only. At sl. No. 9 of Form-35, the appellant has offered 'No' comments. This sl. No. 9 is reproduced below- 9 Where no return has been filed by the appellant for the assessment year, whether an amount equal to the amount of advance tax as per section 249(4)(b) of the Income-tax Act, 1961 has been paid No 3.2. As per provisions of section 249(4)(b) of the Act, where no return has been filed by the assessee, the assessee has to pay an amount equal to the amount of advance tax which was payable by him otherwise appeal shall not be admitted. The provisions of section 249 (4) of the Act are reproduced a....
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....n or collection and which is taken into account in computing such total income.] Explanation 2.- Where in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this section. Explanation 3.- In Explanation 1 and in subsection (3)" tax on the total income determined under sub- section (1) of section 143" shall not include the additional income- tax, if any, payable under section 143.]" 3.4 Section 208 "208. Conditions of liability to pay advance tax Advance tax shall be payable during a financial year in every case where the amount of such tax payable by the assessee during that year, as computed in accordance with the provisions of this Chapter, is one thousand five hundred rupees or more. 3.5 Though the appellant has not offered 'YES' comments at sl. No.9 of Form-35, it was asked vide DIN & letter no. ITBA/NFAC/F/APL_1/2023-24/1059665415(1) dated 12.01.2024 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 compliance was fixed for 19.01.2024 but the app....
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....he assessee. It was therefore prayed before the bench to set-a-side the order passed by LD CIT(A)/NFAC & direct LD CIT(A)/NFAC to admit the appeal for adjudication on merits. 7. Learned DR on the other hand emphasised that for the purposes of calculation of interest u/s 234B(1), liability to pay advance tax is calculated on the basis of assessed tax & therefore the assessee was also liable to pay advance tax on the basis of income tax assessed by the AO, but the assessee failed to pay such advance tax & therefore LD CIT(A)/NFAC was right in dismissing the appeal of the assessee. 8. We have heard learned counsels from both the sides & perused the material available on record. The solitary question which arises for our consideration is whether LD CIT(A)/NFAC was justified in dismissing the appeal of the assessee in limine, by treating that the assessee has not deposited the amount of advance tax in the light of section 249(4)(b) of the IT Act. We find that the appellant assessee did not respond to the notice issued by LD CIT(A)/NFAC, wherein the assessee was asked to clarify that whether he has made payment of tax which includes the element of advance tax. But the appellant assesse....