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2023 (3) TMI 516 - AT - Income TaxNon-admission of appeal u/s. 249(4) - AO invoked the provisions of section 153C - AO treated the return as defective u/s. 139(9) and issued notice to the assessee to rectify the defect, since the assessee did not rectify the defect, the AO proceeded to treat the return filed in response to notice u/s. 153C as non-est - assessee submitted that there is no undisputed liability to pay tax since the return filed has been treated as non-est by the A - HELD THAT - We notice that the coordinate bench of the Tribunal in the case M/s. Garden City Resorts Pvt. Ltd. 2016 (8) TMI 1587 - ITAT BANGALORE has considered a similar issue where the assessee has filed the original return which was initially to be treated as return filed in response to notice u/s. 153C and tax on the returned income was duly paid. The assessee had later filed a revised return u/s. 153C and did not pay the tax on the revised income and held the assessee has already paid the taxes. The assessee has not paid the taxes on the revised return which was not treated to be valid by the AO and was non-est in law. Since the revised return was treated to be non-est in law, there was no question of making payment of tax on the income declared therein - assessee has already paid the tax on the admitted income declared in the original return filed which was acted upon by the AO for framing the assessment u/s.153C of the Act. In the light of these facts, we are of the view that the CIT(Appeals) was wrong in dismissing the appeal of the assessee. In the present case Assessee has filed the original return in which the tax on the income returned is duly paid. On perusal of Form 35 filed we notice that the assessee has disputed the entire amount including what is declared in the return filed in response to notice u/s. 153C which is considered as non-est by the AO and the additions made by the AO. We also see merit in the submissions of the Ld. AR that it is the disputed taxes that is not paid and the undisputed tax on the admitted income as per the original return have been duly paid. Therefore in our considered view the ratio laid down by the Hon'ble High Court and the coordinate bench of the Tribunal is applicable to assessee's case. Accordingly we set aside the order of the CIT(A) and restore the matter to the CIT(A) with a direction to re-adjudicate the appeal on merits. Needless to say that the assessee be given a reasonable opportunity of being heard. Assessee's appeal is allowed for statistical purposes.
Issues Involved:
1. Validity of the return filed under Section 153C. 2. Applicability of Section 249(4)(b) regarding non-payment of tax on the returned income. 3. Jurisdiction of the AO under Section 153C. 4. Completion of assessment under Section 144. 5. Adjudication of specific additions made by the AO. 6. Levy of interest under Sections 234-A, 234-B, and 234-C. Issue-wise Detailed Analysis: 1. Validity of the Return Filed under Section 153C: The assessee filed a return for AY 2014-15 on 31.03.2015. Following a search on the assessee's husband under Section 132, the AO invoked Section 153C and issued a notice on 27.10.2017. The assessee responded with a return declaring an income of Rs. 11,82,60,329 but did not pay the tax of Rs. 5,03,22,060 on this income. Consequently, the AO treated the return as defective under Section 139(9) and proceeded to complete the assessment under Section 144. 2. Applicability of Section 249(4)(b) Regarding Non-payment of Tax on the Returned Income: The CIT(A) dismissed the appeal, stating that the assessee's case fell within the purview of Section 249(4)(b) as the tax on the income declared in response to the notice under Section 153C was not paid. The Tribunal, however, found this application incorrect since the assessee had already filed a return and paid taxes on the original income returned. The Tribunal cited the Karnataka High Court's decision in T. Govindappa Setty, emphasizing that Section 249(4) should be construed to serve the right to appeal and not to deprive it. 3. Jurisdiction of the AO under Section 153C: The assessee argued that the invocation of Section 153C was invalid as no incriminating material was found during the search. This issue was part of the broader contention that the return filed in response to the Section 153C notice was non-est, and thus, no tax liability existed on that basis. 4. Completion of Assessment under Section 144: The CIT(A) upheld the AO's completion of the assessment under Section 144, which was contested by the assessee. The Tribunal noted that the assessee's husband had been appearing before the AO, emphasizing the lack of jurisdiction, which was a crucial point in the assessee's defense. 5. Adjudication of Specific Additions Made by the AO: The AO made several additions, including short-term and long-term capital gains, unexplained deposits, and credits. The CIT(A) did not adjudicate these on merits, as the appeal was dismissed in limine. The Tribunal directed the CIT(A) to re-adjudicate these additions on merits, as the entire assessed amount was disputed by the assessee. 6. Levy of Interest under Sections 234-A, 234-B, and 234-C: The assessee contested the levy of interest under Sections 234-A, 234-B, and 234-C, arguing that it should be canceled based on the facts and circumstances of the case. The Tribunal did not specifically address this issue but implied that it should be reconsidered in the re-adjudication of the appeal. Conclusion: The Tribunal set aside the CIT(A)'s order and restored the matter for re-adjudication on merits, emphasizing that the appeal should not have been dismissed under Section 249(4)(b) as the assessee had paid taxes on the original return. The Tribunal directed the CIT(A) to provide a reasonable opportunity for the assessee to be heard and to adjudicate on the merits of the case, including the specific additions made by the AO and the levy of interest.
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