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TMI Blog2024 (6) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... , advance tax is calculated on the basis of assessed tax, whereas in section 249(4)(b) the words- advance tax which was payable by him are used. If the intention of the legislature would have been same than in both the sections same wording could have been used. But we do not find so. It is the contention of the counsel of the assessee that clause (b) of section 249(4) contemplates that advance tax payable by him, means according to the assessee not according to the assessed income. We are in agreement with the contention of the counsel of the assessee hold that in the instant case the assessee was not required to pay advance tax on the basis of assessed tax but was required to pay advance tax, if any, which was payable by him i.e. on the basis of his undisputed admitted income. Assessee has admitted the taxable income in belated income tax return, due income tax was sought to be adjusted from TCS - instead of advance tax whole of the tax payable on undisputed admitted income of the assessee was already deposited in the shape of TCS therefore there was no further advance tax liability remained to be paid - In our considered opinion LD CIT(A)/NFAC erred in dismissing the appeal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had not filed a valid ITR for A.Y.2017 - 18. 3] The learned CIT(A) erred in not appreciating that the provisions of section 249(4)(b) mandate that the (advance) tax liability on the undisputed income must be deposited prior to filing appeal and the interpretation as sought to be placed by CIT(A) would result into absurd results of making the appellant liable to deposit tax on entire disputed income in a case of a high pitched asst. and hence, the said provisions ought to be interpreted liberally to ensure that the right of appeal guaranteed by Legislature is not deprived to the citizens. 4] The learned CIT(A) ought to have appreciated that interpretation to section 249(4)(b) adopted by the CIT(A) was also contrary to the mandate of CBDT Instruction No. 1914 as modified by CBDT Office Memorandums dated 29.02.2016 and 31.07.2017 which stipulate recovery of 20% of disputed demand without providing any exception to cases of disputed demand where no valid ITR is filed by the assessee and hence, the interpretation sought to be placed by the ld. CIT(A) to section 249(4)(b) was not justified. 5] The assessee submits that on identical facts, the appeal filed in case of cousin of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of Rs. 12,36,079/- and the appellant was asked by notice u/s 156 of the Act to deposit the demand but it is noticed that the appellant has not deposited the demand before filing of this appeal. The appellant has at sl. No.16 of Form-35, stated to have made payment of appeal fee of Rs. 1,000/- only. At sl. No. 9 of Form-35, the appellant has offered No comments. This sl. No. 9 is reproduced below- 9 Where no return has been filed by the appellant for the assessment year, whether an amount equal to the amount of advance tax as per section 249(4)(b) of the Income-tax Act, 1961 has been paid No 3.2. As per provisions of section 249(4)(b) of the Act, where no return has been filed by the assessee, the assessee has to pay an amount equal to the amount of advance tax which was payable by him otherwise appeal shall not be admitted. The provisions of section 249 (4) of the Act are reproduced as under- Section 249(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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 1 and in subsection (3) tax on the total income determined under sub- section (1) of section 143 shall not include the additional income- tax, if any, payable under section 143.] 3.4 Section 208 208. Conditions of liability to pay advance tax Advance tax shall be payable during a financial year in every case where the amount of such tax payable by the assessee during that year, as computed in accordance with the provisions of this Chapter, is one thousand five hundred rupees or more. 3.5 Though the appellant has not offered YES comments at sl. No.9 of Form-35, it was asked vide DIN letter no. ITBA/NFAC/F/APL_1/2023-24/1059665415(1) dated 12.01.2024 to intimate whether it has made payment of tax -which includes element of advance tax also- in compliance to notice of demand u/s 156 of the Act and date compliance was fixed for 19.01.2024 but the appellant failed to contradict the information given at sl. no. 9 of Form-35 and to prove that it has made payment of amount equal to the advance tax which was due on its income. 4. Since the appellant has not filed return of income as well as not paid an amount equal to the amount of advance tax which was payable by it, present appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the assessee was also liable to pay advance tax on the basis of income tax assessed by the AO, but the assessee failed to pay such advance tax therefore LD CIT(A)/NFAC was right in dismissing the appeal of the assessee. 8. We have heard learned counsels from both the sides perused the material available on record. The solitary question which arises for our consideration is whether LD CIT(A)/NFAC was justified in dismissing the appeal of the assessee in limine, by treating that the assessee has not deposited the amount of advance tax in the light of section 249(4)(b) of the IT Act. We find that the appellant assessee did not respond to the notice issued by LD CIT(A)/NFAC, wherein the assessee was asked to clarify that whether he has made payment of tax which includes the element of advance tax. But the appellant assessee failed to reply to the above notice also did not filed any application seeking exemption from payment of advance tax, which compelled LD CIT(A)/NFAC to dismiss the appeal in limine. But at the same time LD CIT(A)/NFAC also referred section 234B(1) for the purposes of calculation of interest on advance tax hold that advance tax is to be calculated on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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