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2024 (6) TMI 325

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....44/144B of the Act 61. The CIT (A) has refused to admit the appeal for hearing, for nonpayment of advance tax as per provisions of section 249(4)(b) of the Act 61. 2. The grounds of appeal filed by the assessee before us are as follows: "1. On the facts and circumstances of the case, the Ld. CIT(A) vide order u/s 250(6) dated 09.02.2024 rejecting the appeal filed vide form 35 for non-payment of tax payable on addition of Rs. 8942000/- made by the Ld. AO vide order u/s 147 r.w.s 144. 2. That the Ld. CIT(A) has erred in rejecting the appeal filed vide form 35 by invoking the provisions of section 249(4) without appreciating that the stipulation as to the payment of tax before filing of first appeal is only directory and not mandatory. ....

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....ssee during the year under appeal derived income from agriculture, and has derived substantial amount on sale of agricultural lands and also against advance for sale. No return has been filed in normal course. Cash has been deposited in bank by the assessee, amounting to Rs. 95,30,500/-, during the year under appeal. In absence of any return on record, notice u/s 148 of the Act 61, issued on 31/03/2022, (as per provisions of law laid down under new regime). Subsequent notices u/s 142(1) of the Act 61, also issued. However, the assessee filed written submission before the AO on 20/02/2023 along with documentary evidence of registered deed of sale of agricultural lands, agreement of advance against sale of land, bank statements, computation o....

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....o question arises of tax deposit. Column number 9 is of taxed posited, it is submitted there is no tax liability as no Income Tax return has been filed. It is humbly prayed that Form 35 is filed completely. Kindly treat the appeal as valid and oblige". 3.4 The CIT(A) concluded that the reply filed by the assessee is not satisfactory, and it is also stated, that the assessee has not made any application as per proviso to section 249(4)(b) of the Act 61, along with the memorandum of appeal in Form 35, praying for exemption from operation of the said provision of that clause. As such, the CIT(A), dismissed the appeal for statistical purpose as not admitted. 4. In course of hearing of the appeal the Ld. AR, argued that in the instant case, t....

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....) liability exists as per section 210, by the appellants own calculation u/s 209, and the appellant is prevented by some reasons from making payment thereof, then in such cases the appellant is allowed a window to make an application of waiver quoting good and sufficient reasons before the first appellate authority, to exempt him from the operation of the provision of that clause. 5.3 In other words, in the instant case since the amount of advance tax payable by the assessee was NIL as per clause (b) of sub sec (4) of Sec 249, the proviso to the said clause (b) itself is not triggered in this case. 5.4 The AR in support of his arguments relied upon the decision of the ITAT, Raipur Bench in ITA No: 73/ RPR/ 2024, in the case of Vishnushara....

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....nd in the computation of income filed by the assessee before the Tribunal, he has declared NIL taxable income, thereby indicating that he is not liable to pay any advance tax as per provisions of section 207 of the Act 61 because he has no total income which would be chargeable to tax and computation of advance tax, as per sec 209 of the Act is NIL, and according to the assessee the payment of advance tax u/s 210 of the Act, of his own accord, does not arise in this case. We also note that the assessee has filed a reply before the first appellate authority to the deficiency letter, dated 15/01/2024, stating that he has no taxable income and not liable to file return of income. 7.2 As such, considering all materials on record, we are of the....