2022 (1) TMI 232 - AT - Income Tax

Validity of reopening of assessment u/s 147 - Maintanability of appeal - CIT-A Invoking the provisions of section 249(4)(b) holding that the appeal of the assessee is not maintainable because assessee had not filed his original return of income u/s. 139(1) 139(4) or under the requisitions of the AO in compliance of notice u/s. 148 or 142(1) - HELD THAT - Nowhere the AO has held that the assessee has not filed any return of income originally or in pursuance of section 148. Secondly, in the statement of facts in Form 35, the assessee has clearly submitted that it has filed return of income. If the ld. CIT(A) has any doubt at least he should have clarified it from the assessee by giving a specific notice of query. Now, before us, ld. counsel has produced photocopy of income-tax return filed originally on 04.12.2009 for the impugned assessment year and also gave the details of taxes paid on the returned income. Thus, the findings of the ld. CIT(A) holding the appeal not admissible u/s. 249(4)(b), is found to be incorrect. Accordingly, since ld. CIT(A) has not decided the appeal on merits, therefore, we remand back all the issues and grounds raised before us before the ld. CIT(A) to be decided on merits in accordance with law after giving due and effective opportunity of being heard to the assessee. Appeal filed by the assessee is allowed for statistical purposes.

Summary

Issues:
1. Validity of reopening on jurisdiction.
2. Merits of the additions based on the primary issue of non-filing of original return of income.
3. Admissibility of the appeal under section 249(4)(b) of the Income-tax Act.

Validity of Reopening on Jurisdiction:
The appeal was filed against the order dated 30.08.2018 passed by the ld. CIT(A)-I, Noida for the assessment year 2009-10. The assessee challenged the validity of reopening on jurisdiction. The ld. CIT(A) invoked the provisions of section 249(4)(b), stating that the appeal was not maintainable as the assessee had not filed the original return of income u/s. 139(1) or under the requisitions of the AO. The ld. CIT(A) held that for the appeal to be eligible for admission, the assessee must deposit an amount equal to the advance tax payable. The assessee argued that they had indeed filed the original return of income on 04.12.2009 for A.Y. 2009-10 and provided evidence to support this claim. The Revenue accepted that if the return had been filed and the admitted tax paid, the matter could be reconsidered by the ld. CIT(A).

Merits of the Additions Based on Non-filing of Original Return of Income:
The ld. CIT(A) noted in the order that the appellant had not filed the return of income under the specified sections of the Income-tax Act. However, the appellant contended that they had filed the original return of income and provided supporting documentation. The ld. CIT(A)'s finding that the appeal could not be admitted for want of jurisdiction was deemed incorrect. The appellant's counsel produced a photocopy of the income-tax return originally filed for the assessment year in question and detailed the taxes paid on the returned income. The Tribunal found the ld. CIT(A)'s decision to be erroneous and remanded all issues and grounds raised back to the ld. CIT(A) for a decision on merits after providing the appellant with a proper opportunity to be heard.

Admissibility of the Appeal under Section 249(4)(b) of the Income-tax Act:
The ld. CIT(A) had held that the appeal was not admissible under section 249(4)(b) due to the alleged non-filing of the original return of income. However, the Tribunal found that the appellant had indeed filed the original return of income and paid the admitted tax. The ld. CIT(A)'s conclusion that the appeal was not admissible was based on incorrect assumptions and lack of proper verification. The Tribunal allowed the appeal for statistical purposes and directed a reconsideration of the matter on merits in accordance with the law.

In conclusion, the Tribunal found that the ld. CIT(A)'s decision regarding the admissibility of the appeal under section 249(4)(b) was incorrect as the appellant had filed the original return of income and paid the admitted tax. The matter was remanded back to the ld. CIT(A) for a fresh decision on merits, providing the appellant with a fair opportunity to present their case.