TaxTMI 
TaxTMI 
2026 (8) TMI 1778
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....um appeal filed by the assessee in ITA No.807/Hyd/2026, wherein the assessee has assailed the impugned order of the CIT(A) on the following grounds of appeal: 1) The learned Commissioner of Income Tax (Appeals) erred both in law and on facts in dismissing the appeal on the alleged ground of defect in Form No 35 by misreading Sl No 9 thereof although no defect whatsoever existed in the appeal filed by the Appellant 2) The learned CIT(A) erred in dismissing the appeal solely on the ground of alleged nonpayment of advance tax under section 249(4)(b) without appreciating that (a) No return of income had been filed for the relevant Assessment Year; (b) There was no admitted income on the part of the Appellant; (c) The entire assessed income was wholly disputed in appeal; and (d) Assesse contends that there was in fact there was loss and the business of agency has been closed. Hence the requirement of payment of advance tax under section 249(4)(b) was not attracted in the facts and circumstances of the case 3) The learned CIT(A) erred in law in dismissing the appeal without adjudicating the grounds on merits thereby denying the Appellant a reasonable opportunit....
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....Shri D N Joshi, CA, Learned Authorized Representative (for short, "Ld. AR") for the assessee, at the threshold of hearing of the appeal, submitted that the CIT(A) had grossly erred in law and facts of the case in dismissing the appeal filed by the assessee by treating it as infructuous. Elaborating on his contention, the Ld. AR submitted that though the assessee in his Memorandum of Appeal, i.e., "Form- 35" had against "Column No.9" wherein information was sought as to whether the amount equal to the amount of advance tax as per Section 249(4)(b) had been paid, specifically stated that the same was "Not applicable", but the CIT(A) had summarily brushed aside the same and wrongly observed that the assessee had failed to comply with the mandate of Section 249(4)(b) of the Act. The Ld. AR submitted that the CIT(A) ought to have called for an explanation from the assessee instead of summarily treating him as being in default of the aforesaid statutory compliance and dismissing the appeal by treating the same as infructuous. However, the Ld. AR on a specific query by the Bench as to whether the assessee, as required per the "proviso" to Section 249(4)(b) of the Act, had filed any applic....
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.... "249. (1) to (3)......... (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the [Joint Commissioner (Appeals) or 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." 11. Ostensibly, Section 249(4) of the Act contemplates the conditions which are statutorily required to be satisfied failing which the appeal filed by an assessee before the CIT(A) shall not be admitted, viz., (a) where the assessee has filed a return of income, the tax due on the income returned by him has been paid; or (b) where the assessee has not filed any return of income, then an amount equal to the amount of advance tax which was payable by him has ....
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....on of the advance tax payable either by the assessee or by the AO, we are of the view that the claim of the assessee that in the absence of any income chargeable to tax for the subject year he was not liable for any advance tax liability could not have been summarily discarded by the CIT(A). In our view, the CIT(A), instead of calling for an explanation from the assessee as to why the obligation to pay an amount equal to the amount of advance tax as per section 249(4)(b) of the Act was not applicable in his case, had, however, wrongly summarily discarded the same. At the same time, we cannot also remain oblivion of the fact that the assessee had failed to comply with the obligation that was cast upon him as per the "proviso" to section 249(4) of the Act, as per which he ought to have filed an application before the CIT(A) based on which it was claimed by him that the obligation under Section 249(4)(b) of the Act was not applicable in his case. 16. Be that as it may, we are of a firm conviction that in the totality of the facts involved in the present case, the matter requires to be set aside to the file of the CIT(A) who is directed to re-adjudicate the appeal after taking cogni....