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TMI Blog2020 (2) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT(Appeals) to adjudicate afresh and grant time for payment of taxes due on the returned income and subject to payment of taxes the appeal is admitted and adjudicated on the merits. Assessee should be provided adequate opportunity of hearing and shall co-operate in submitting the information for early disposal of the appeal and the grounds of appeal of the assessee are allowed for statistical purposes. - ITA Nos.454 to 456/Bang/2016 (Assessment Years : 2010-11, 2011-12 & 2012-13) - - - Dated:- 22-11-2019 - SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER Assessee By: Shri S.V. Ravi Shankar, Advocate. Revenue By: Shri Pradeep Kumar, CIT (D.R) ORDER PER SHRI PAVAN KUMAR GADALE, JM : These are the appeals filed by the assessee for different assessment years against the common order of Commissioner of Income Tax (Appeals)-11, Bangalore passed under Section 153C r.w.s. 143(3) and 250 of the Income Tax Act, 1961 (the Act). Since the appeals have a common issues and identical, they are heard together and consolidated order is passed. For the sake of convenience, we shall take up ITA No.454/Bang/2016 for the Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y maintained by the appellant and not based on any incriminating material found in the course of search proceeding. 7. Without Prejudice the appellant denies himself to be liable to be assessed to total income of ₹ 1,19,99,803/- as against the total income returned of ₹ 78,55,300/- on the facts and circumstances of the case. 8. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. without prejudice, the disallowance of field work expenses of ₹ 16,39,762/-, salary expenses of ₹ 4,14,502/-, registration expenses of Rs.l,20,000/- and travel expenses of ₹ 93,025/- is not justified on the facts and circumstances of the case. 9. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in not adjudicating the ground raised by the appellant i.e. without prejudice, the learned assessing officer erred in not accepting the invoices f vouchers / bills produced before the learned assessing officer in the course of assessment proceeding. 10. The learned Commissioner of Income-tax [Appeals] is not justified in law and on facts in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wings is only based on presumptions, assumptions, surmise and conjecture and is not based on any cogent material to prove the existence of unexplained expenses. 17. The Appellant denies himself liable to be charged to interest under sections 234A, 234B and 234C of the Income-Tax Act, 1961 on the facts and circumstances of the case. Further the quantum, period and rate are not discernible from the assessment order. 18. The appellant craves leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal as may be necessary at the time of hearing. 19. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity. 3. At the time of hearing, the learned Authorised Representative prayed for admission of additional ground and there is no objection from the ld. DR. Accordingly, additional grounds are admitted and heard. The additional grounds of appeal are as under : 1. The learned CIT(A) erred in law in dismissing the appeal on the ground that admitted taxes have not been paid with ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pages 7 to 26 and assessed the total income of ₹ 1,19,98,803 and passed the order under Section 153C r.w.s. 144 of the Act dt.25.3.2014. Aggrieved by the order, the assessee filed an appeal with the learned CIT(Appeals) and the learned CIT(Appeals) has dealt on the issue of non-payment of tax on admitted income in the Return of Income and of the opinion that the appeal can be decided on merits only when provisions under Section 249(4)(a) of the Act are complied. The learned CIT (Appeals) relied on the decision of Hon'ble Apex Court in the case of CIT Vs. Pavan Kumar Laddha 324 ITR 324 at page 4 which read as under : The Hon'ble High Court in the above decision (where provisions are similar) has held that the provision are mandatory and therefore it is clear that if the mandatory provisions are not complied, the appeal cannot be admitted. In a recent decision in the case of CIT vs Pawan Kumar Laddha 324 ITR 324, the Hon'ble Apex Court while deciding the issue whether payment of taxes was a pre-condition to appeals before ITAT, have categorically observed that :- No appeal under Section 249(4)(a) in Chapter XX(A) was admissible without the assessee havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rival contentions and perused the material on record. The ld. AR has argued on additional grounds of appeal and emphasized that paying of taxes on invalid Return of Income does not arise and dismissing the appeal in limine by the learned CIT(Appeals) is bad in law. The learned Authorised Representative relied on the judicial decisions to support that taxes cannot be paid on invalid Return of Income. We found on perusal of the assessment order at para 7, the Assessing Officer has not dealt on the Return of Income and observed that wherever returns are filed, they are defective under Section 139(9) of the Act and further the assessee has not paid self-assessment tax on returned income. In spite of issuing Notices and granting the time to cure the defects, the assessee has not made good for various reasons which could not be explained by him in the assessment proceedings. Further, the Assessing Officer observed that since the defects are not cured and there is no valid return and whereas the assessee has filed Return of Income under 153C of the Act. Aggrieved by assessment order under Section 153C r.w.s. 144 dt.25.3.2014, assessee filed appeal with CIT (Appeals) whereas learned CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n open heart surgery on 9.6.2014 and subsequently I have developed Air passage disease. Due to this reason I am having an unstable hypertension and acute breathlessness. This has affected my working and consequently my earnings. Wherefore I respectfully pray that some time be granted to pay the tax dues in the interest of justice. It is clear that till 12.01.2016 also, he has not been paid the taxes. 7. Further we, considering the findings of the Assessing Officer and the observations of the CIT(Appeals) found that the assessee has accepted that no taxes have been paid on returned income and prayed for some time to pay the taxes due which cannot be disputed prima facie from submissions of the assessee the order of learned CIT(Appeals). But the ld. AR emphasized that since the Return of Income is treated as invalid, the payment of taxes does not arise. Whereas in the present case the assessee has not paid the taxes at the time of filing Return of Income and has not cured the defects identified under Section 139(9) of the Act. Hence the Assessing Officer has no alternative except to treat the Return of Income as invalid to commence the assessment proceedings under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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