2025 (11) TMI 1385

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... under Section 250 of the Income Tax Act, 1961 (hereinafter referred to as the "Act") and relates to Assessment Year (A.Y.) 2012-13. 2. The grounds of appeal raised by the assessee are as under: "1. The ld. CIT(A) erred in law as well as on fact in dismissing an appeal on ground of alleged defect in form no.35 on by misreading the same and as such there is no defect. 2. The ld. CIT(A) erred in law as well as on fact in upholding an addition of Rs. 99,60,000 made by Id.AO being investment made in shares of SMS soft tech LTD." 3. The primary grievance raised by the assessee before us, as raised in Ground No.1 above, relates to the dismissal by the Ld. CIT(A), of the assessee's appeal as non-maintainable on account of d....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... and no such application is made in this behalf, this appeal of the appellant is not admitted as per section 249(4) of the Income Tax Act, 1961. As a result, appeal of the appellant is hereby dismissed." 4. As is evident from a bare perusal of the above, the defects noted by the Ld. CIT(A) in Form 35, related to column 8 of Form 35 requiring furnishing of data of return of income filed by the assessee for the assessment year in which the appeal was filed. The Ld. CIT(A) has noted assessee mentioning 'not applicable" against the said column. Similarly, in column 9 of the Form where in case of no return filed, the assessee was noted to have mentioned the same remark. The Ld. CIT(A) further goes on note the provisions of law requir....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d the issue on merits, the matter may be restored back to him for adjudication on merits. 7. Having considered the contentions of both the parties, the primary grievance of the assessee before us is against the order of the Ld. CIT(A) rejecting its appeal before him as non-maintainable for improper details furnished in Form 35 particularly with respect to detail of furnishing of return of income mentioning "Not Applicable" therein and being non-filer of return of income finding the assessee to have not complied with the condition prescribed in section 249(4) of the Act for admissibility of the appeal,of having paid advance taxes thereon /or filed an application to the appellate authority seeking exemption from the payment of advance tax.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Thakor) vs. ITO in ITA No. 1626/Ahd/2024 for A.Y. 2017-18, dated 28.08.2025, the Coordinate Bench held as under: "10. Having held so, we have noted that before the AO the assessee remained unheard and the Ld. CIT(A) dismissed assessee's appeal as non-maintainable on account of the fact that no return of income was filed by the assessee and no advance taxes were paid by the assessee. The Ld. CIT(A), we hold was grossly incorrect in treating the assessee's appeal non-maintainable for the aforesaid reasons. Advance tax liability of an assessee arises on admitted and undisputed income of the assessee and not on addition made to the income of the assessee which are disputed by the assessee. The provisions of section 208-211 of the Act d....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f section 210, the total income of the latest previous year in respect of which the assessee has been assessed by way of regular assessment or the total income returned by the assessee in any return of income furnished by him for any subsequent previous year, whichever is higher, shall be taken and income-tax thereon shall be calculated at the rates in force in the financial year; (c) where the calculation is made by the Assessing Officer for the purpose of making an amended order under sub-section (4) of section 210, the total income declared in the return furnished by the assessee for the later previous year, or, as the case may be, the total income in respect of which the regular assessment, referred to in that sub-section has b....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e the order passed by the Ld. CIT(A) and noting that the assessee was prevented by sufficient cause from appearing even before the AO, we consider it fit to restore the matter back to the AO to decide the issue afresh after giving due opportunity of hearing to the assessee." 10. In the case of the assessee, there is no admitted income of the assessee and the entire income added in the hands of the assessee is disputed before the Ld. CIT(A). Therefore, there was no requirement for the assessee to pay any advance tax. The assessee's appeal, therefore, we hold, should not have been dismissed as non-maintainable by the Ld. CIT(A) for not having paid advance taxes or for not having made an application seeking exemption from the said requireme....