TaxTMI 
TaxTMI 
2024 (6) TMI 1565
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....e appeal of the assessee as inadmissible for want of payment of advance tax as per provisions of section 149(4)(b) of the Act. He has pointed out that there is no liability or obligation on the assessee to pay the advance tax as there is no taxable income of the assessee for the year under consideration. He has further submitted that the assessee did not file any return of income and AO initiated the reassessment proceedings by issuing notice u/s 148 and thereafter completed the assessment u/s 144 r.w. section 147. Thus, Ld. AR has submitted that when the assessee did not file any return of income then the provisions of section 249(4) of the Act would not apply in the appeal against the reassessment order passed by the AO. Ld. AR has relied upon the decision of Mumbai Benches of the Tribunal dated 16.04.2024 in case of M/s Nine Globe Industries Pvt. Ltd. vs. ACIT in ITANo. 3889/Mum/2023. 3. On the other hand, Ld. DR has relied upon impugned order of the CIT(A). 4. We have considered the rival submissions as well as relevant material on record. The AO has stated in the assessment order passed u/s 144 r.w. section 147 of the Act dated 26.11.2019 that the assessee has not filed ....
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....ve columns. In these columns, the appellant was required to mention the details of return filed and particulars of payment of advance tax prior to filing the appeal respectively, which is not mentioned. Therefore, it is clear that, the appellant has not paid an amount equal to the amount of advance tax which was payable on or before filing the appeal. 2.7. As per section 249(4)(b) of the Act, the appeal shall not be admitted, unless the appellant has paid an amount equal to the amount of advance tax which was payable. As the applicable advance tax has not been paid by the appellant before filing of the appeal, the appeal shall not be admitted. Therefore, the present appeal filed is not admitted as per the provisions of Section 249(4) of the Act." 4.1 Thus, the appeal was dismissed in limine as not admissible for want of payment of advance tax u/s 249(4) of the Act. At the outset, we note that an identical issue has been considered by this Tribunal in case of Shri Pushpendra Singh Chouhan vs. ITO in ITANo. 122/Ind/2024 vide order dated 24.06.2024 in para 7 & 8 as under: "7. We have considered the rival submissions as well as relevant material on record. The Asse....
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....l. 6. In the said circumstances, we find that the impugned order dismissing the appeal on the ground of non-compliance of Section 249(4) of the Act cannot be sustained and deserves to be set-aside". In the case in hand the assessee has filed return of income and thereafter, the Assessing Officer has initiated reassessment proceedings and passed reassessment order. Therefore, for filing the appeal before CIT(A) the question of payment of advance tax by the assessee as per clause(b) of Sub Section 4 of Section 249 does not arise. Similarly the Raipur Bench of the Tribunal in case of Vishnusharan Chandravanshi Vs. ITO in ITA No.73/RPR/2024 order dated 10.04.2024 has also considered the identical issue in para No.10 to 15 as under: 10. Admittedly, it is a matter of fact borne from record that the assessee had neither filed his return of income u/s 139 of the Act nor in compliance to notice issued to him u/s. 142(1) of the Act, dated 10.03.2018. As the assessee had failed to file his return of income, the CIT(Appeals) had brought his case within the meaning of Clause (b) of sub-section (4) of Section 249 of the Act. For the sake of clarity, Section 249(4) of t....
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....ny obligation was cast upon the assessee to pay "advance tax". As stated by the Ld. AR, and rightly so, in absence of any taxable income for the year under consideration [as was stated by him in the "SOF" filed before the CIT(Appeals)] no obligation was cast upon him to compute and pay any advance tax u/ss. 208 & 209 of the Act. Considering the fact that as no obligation was cast upon the assessee to compute/deposit any amount towards "advance tax' for the subject year, I am unable to concur with the view taken by the CIT(Appeals) who dismissed the appeal as not maintainable for the reason of non-compliance off mandatory condition contemplated in Clause (b) of sub-section (4) of Section 240 the Act. Although, at the first blush, I was of the view that the amount assessee the A.O vide his order u/s. 144 of the Act dated 23.11.2019 of Rs. 10 lacs would saddle the assessee with an obligation to pay "advance tax", but stood corrected a careful perusal of Section 208 and Section 209(1)(a) of the Act, which contemplates determination of the said tax liability at the behest of the assessee. 14. As in the present case, the assessee had not only before me but had in the "Statem....