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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 ..... pany and in term the assessee used to deposit the cash in his current account maintained with SBI No. 35959737035 & Uttar Bihar Gramin Bank, Muzaffarpur current account No. and immediately send the money to the company by RTGS. (Copy of bank account enclosed along with the copy of code allotted by EBIX Payment Services Pvt. Ltd.) 3. Accordingly the cash deposited of Rs. 1,22,60,580/- which is alleged to be unexplained and treated as income u/s 69A is out of cash receipt from loanee. The assessee received only a petty sum of Rs. 67,742/- as his commission for AY 2017-18 as is depicted in Form 26AS. Therefore the income of assessee liable to tax is only to the extent of Rs. 67,742/- which being below taxable limit, no return was filed. Therefore the addition of Rs. 1,23,28,322/- shall be deleted. Further grounds shall be urged at the time of hearing." 3. Brief facts of the case are that the Ld. AO noted that the assessee had not filed the return of income for the A.Y. 2017-18 and from perusal of records and data available on e-filing portal, it was observed that the assessee had income from two sources; one from brokerage/commission received from EBIX Payment Services Private Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake payment of amount equal to the advance tax, which was due on his income. Since the appellant had not filed the return of income, the appeal was not liable to be admitted and was treated as infructuous and therefore, was dismissed. 5. Rival contentions were heard and the record and the submissions made have been examined. During the course of the appeal before us, the assessee filed written submissions, the relevant extract from which is as under: In the copy of ITR for A.Y. 2016-17 enclosed at page no18-21 of the paper book it can be seen at page no.20 that the business of the assessee is designated as retailers with trade name KHUSHBOO MOBILE the gross turnover for the period 01.04.2015 To 31.03.2016 had been declared as Rs. 10,58,120/- on which a presumptive income u/s 44AD had been declared as 1,26,974/- and other income of Rs. 1,57,974/- making a total taxable income of Rs. 2,52,960/-. In the year 01.04.2016 to 31.03.2017 the assessee did not file any ITR and his income is comprising of presumptive income 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contemplated in Section 249(4)(b) would stand triggered only when any obligation is cast upon assessee to pay "ADVANCE-TAX". Where assessee had no taxable income, no obligation would be cast upon him to compute and pay any advance tax under Section 208/209. Therefore, where assessee has not filed his return of income as he had no taxable income, Commissioner (Appeal) could not have held that he has failed to comply with statutory condition contemplated in Section 249(4)(b) of the Act". All the above facts couldn't be examined either at the stage of scrutiny by A.O. or proceeding before CIT-Appeal. Therefore, in the interest of natural justice, it is requested that the above appeal may kindly be allowed and the case may be set aside to the A.O. for the proper verification and passing of order for proper determination of tax payable, if any. 6. In this respect, it is relevant to examine the provisions of section 250(6) which are reproduced as under: "250(6) - The order of the Commissioner (Appeals) disposing 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) 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. The relevant extract is as under: "7. An appeal is filed with the CIT(A) from appealable orders listed in Section 246A of the Act. We find that the procedure in appeal before the CIT(A) and the powers of the CIT(A) are governed by Sections 250 and 251 of the Act respectively. The relevant provisions for consideration are as under:- 'Procedure in appeal 250 (4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals). ... (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. ... Powers of the Commissioner (Appeals) "Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act." 7. Further, it is also important to refer to the provisions of Section 249(4)(b) of the Act, which is relied upon by the Ld. CIT(A) while dismissing the appeal and which is as under: "249(4)(b): where no return has been filed by the assessee, the assessee has paid an amount 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, referred to in that sub-section has been made, shall be taken and income-tax thereon shall be calculated at the rates in force in the financial year; (d) the income-tax calculated under clause (a) or clause (b) or clause (c) shall, in each case, be reduced by the amount of income-tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income (as computed before allowing any deductions admissible under this Act) which has been taken into account in computing the current income or, as the case may be, the total income aforesaid; and the amount of income-tax as so reduced shall be the advance tax payable: Provided that for computing liability for advance tax, income-tax calculated under clause (a) or clause (b) or clause (c) shall not, in each case, be reduced by the aforesaid amount of income-tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income, if the person responsible 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 ..... 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