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TMI Blog2025 (2) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... annot dispose the assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. It has also been held in the case of Premkumar Arjundas Luthra [2016 (5) TMI 290 - BOMBAY HIGH COURT] that the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. There is an option available to the assessee to file an application before the Ld. CIT(A) who may dispense with the requirement of payment of advance tax on the basis of facts. Apparently, no such application was filed by the assessee and, therefore, the appeal was dismissed. Liability to pay the advance tax - Since the Ld. CIT(A) has not mentioned as to how much advance tax was payable by the assessee which has not been paid, and the assessee had the option of filing an application before the Ld. CIT(A), which however, was not filed and consequently the discretion available to the Ld. CIT(A) to exempt the assessee from the applicability of the rigours of section 249(4) could not be exercised by him and the appeal has also not been decided on merit, therefore, in the interest of justice, the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing portal, it was observed that the assessee had income from two sources; one from brokerage/commission received from EBIX Payment Services Private Ltd. and the other being proprietary firm M/s Khushboo Mobile. From perusal of returns filed by the assessee for subsequent and preceding years, it was found that the assessee had regular source of income from M/s Khushboo Mobile, but he failed to file the return of income for the year under consideration. In the current account, cash deposit of ₹1,22,60,580/- was made besides brokerage/commission income earned. The commission of ₹ 67,742/- from EBIX Payment Services Private Ltd. and cash deposits in the current bank account indicated that besides the commission/brokerage income, the assessee had also earned income from other sources. Accordingly, a notice under section 148 of the Act was issued and the assessee was asked to furnish various details vide questionnaire issued. However, no compliance was made and therefore, the assessment was made to the best of judgement as despite several opportunities, the assessee had not replied to any of the notices issued and it was inferred that the assessee had nothing to say. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from mobile business whose turnover as depicted at page 50 of paper book is Rs. 4,91,037.35 @ 8% Rs. 39,283 and the commission from agency of microfinance facilitator for SATIN CREDITCARE NETWORK LIMITED amounting to Rs. 67,742/- (On a volume of business of Rs. 1,22,60,580/-) which is also reflected in 26AS statement at page no. 62 of the paper book. The assessee in this year in addition to its regular business of mobile undertook to facilitate microfinance business of SATIN CREDITCARE NETWORK LIMITED. The modus of this business is explained as below:- 1. The ground agents of SATIN CREDITCARE NETWORK LIMITED used to collect cash from microfinance beneficiaries and on the daily basis handed over this cash to the assessee who was working as its agent. 2. This cash was deposited by the assessee on day basis in the SBI A/c No. 35959737035 and immediately transferred the similar amounts to the AREA DISTRIBUTOR of "SATIN CREDITCARE NETWORK LIMITED" namely SAHITYALOK, MOTIJHEEL, MUZAFFARPUR, BIHAR by banking channel through the above State Bank account. 3. The SATIN CREDITCARE NETWORK LIMITED had an agency named EBIX CASH who had allotted ID and Password to all the agents and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision." 6. Thus, section 250(6) of the Act casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and the decision as well as the reason for arriving at such decision. In the present case before us, the Ld. CIT(A) has not mentioned the reasons after examining the records while disposing of the appeal. The Ld. CIT(A) has neither adjudicated upon various grounds of appeal nor has passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 (Madras) it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose the assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. The relevant extract from the order is as under: "6. ... The first respondent is the appellate authority. Needless to state that the Appellate Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason for the decision. ... Powers of the Commissioner (Appeals) "Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers - (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment. ... (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty." ... (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation. - In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant.' 8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the [Joint Commissioner (Appeals) or the] Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause." 7.1. As per the proviso thereof, there is an option available to the assessee to file an application before the Ld. CIT(A) who may dispense with the requirement of payment of advance tax on the basis of facts. Apparently, no such application was filed by the assessee and, therefore, the appeal was dismissed. 7.2. However, the liability to pay the advance tax is determined by the provisions of Chapter XVII-C relating to advance payment of tax and is governed by the provisions of section 208 as per which 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 in this regard is Rs. 10,000/- or more. Further, Section 209 of the Act r.w.s. 210 specifies the manner of computation of advance tax; s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponsible for deducting tax has paid or credited such income without deduction of tax or it has been received or debited by the person responsible for collecting tax without collection of such tax." 7.3. The Ld. CIT(A) has not specified as to how much advance tax was payable or even whether the provisions of Section 208 of the Act were applicable to the assessee or not. On the contrary, the assessee contends that since the income was below the maximum amount not chargeable to tax, therefore, there was no question of payment of any advance tax. Further, the Ld. CIT(A) has not decided the appeal on the merits of the case. Hence, in view of the facts, since the Ld. CIT(A) has not mentioned as to how much advance tax was payable by the assessee which has not been paid, and the assessee had the option of filing an application before the Ld. CIT(A), which however, was not filed and consequently the discretion available to the Ld. CIT(A) to exempt the assessee from the applicability of the rigours of section 249(4) could not be exercised by him and the appeal has also not been decided on merit, therefore, in the interest of justice, the order of the Ld. CIT(A) is set aside to be done afr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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