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TMI Blog2023 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... order was passed in the absence of Assessee and the impugned order dated 31.12.2018 in paragraph Nos. 2 to 12 mention that inspite of notice being issued the same could not be served on the Assessee and therefore, there was no representation of the Assessee before the ld CIT(A) and who proceeded to dismiss the appeal by invoking provision of section 249(4)(b) of the Act without giving taking into consideration the facts which assessee claims made him not liable to pay the advance tax. The Bench is of considered opinion that the Assessee should be given an opportunity to put across its claim of exemption from the application of section 249(4) of the Act before the ld CIT(A). The bench can rely on the Hyderabad bench s order in case of Late Smt Raful Ghani Vs. Asstt. CIT [ 2021 (6) TMI 1135 - ITAT HYDERABAD] wherein, the Bench was confronted with similar situation. The impugned order is set aside and the issue is restored to the file of the ld CIT(A) to decide the question of applicability of section 249(4) of the Act on merits of claim of the assessee, after giving an opportunity of hearing to the Assessee. The appeal is allowed for statistical purposes. - ITA No. 6559/Del/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issing the appeal for non compliance of mandatory provision of section 249(4) of the Act. The Assessee is now in appeal before the tribunal with the following grounds:- 1. Ld. Assessing Officer had no jurisdiction on the assessee, so without jurisdiction assessment order is void-ab-initio. 2. Ld. CIT(A), had passed order u/s 250 without providing an opportunity of being heard and ex-party order had been made by CIT(A) any notice has not been served on Assessee. 3. Ld. CIT(A) has passed order by mentioning that assessee has not deposited his advance tax, but in our case assessee is senior citizen, so provision of advance tax is not applicable on him, so order of CIT(A) is void ab initio. 4. That on Facts and circumstances of the case and in Law, the assessing officer had erred in assessing the income tax of the appellant at Rs. 75,27,290.00, please be deleted. That the Ld. Assessing Officer had erred on facts and circumstances of the case and in law in making an addition on account from cash deposited in his saving bank account of Rs. 1,31,17,537.00. 5. After sale of this agriculture land all amount was invested in construction of his residential home in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in India, who (a) does not have any income chargeable under the head Profits and gains of business or profession ; and (b) is of the age of sixty years or more at any time during the previous year. 7. Perusal of the aforesaid provisions of section 207 of the Act show that it talks about payment of advance tax in regard to total income which would be chargeable to tax. However, an individual resident of 60 years or more who, any time during the previous year, was not having any income chargeable under the head profit and gains of business or profession, is not required to pay the advance tax. When read in context of section 249(4)(b) it has to be observed that where no return has been filed by the assessee, then in that case at time of appeal before the CIT(A), the assessee has to pay an amount equal to the amount of advance tax which was payable by him . However, here no advance tax was payable as the assessee was over 60 years of age and not having any income from P G. Further, the proviso to the Section 249(4) of the Act provides that if sufficient reason are brought on record in writing the CIT(A) may exempt the Assessee from the operation of provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng grounds of appeal: 1. The order of the learned Commissioner of Income-Tax (Appeals) is erroneous both on facts and in law. 2. The learned Commissioner of Income-Tax (Appeals) erred in holding that the appeal filed by the appellant is not maintainable. The learned Commissioner of Income-Tax (Appeals) ought to have seen that according to the appellant no tax is payable by him and that, therefore, no advance tax liability arises and in view of the same, the provisions contained in Sec.249(4)(b) have no application. 3. The learned Commissioner of Income-Tax (Appeals) erred in holding that the appellant is liable to pay any advance tax and that there was failure as mentioned in Sec.249(4)(b) of the LT. Act. As an alternate the learned Commissioner of Income-Tax (Appeals) ought to have provided property opportunity. 4. The learned Commissioner of Income-Tax (Appeals) ought to have considered each of the grounds agitated before him and decided the appeal on merits. 5. The learned Commissioner of Income-Tax (Appeals) ought to have considered that the Assessing officer wrongly worked out the capital gain; did not allow the amount of deduction claimed u/s 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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