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Rajlaxmi Satishkumar Sharma vs. The Income Tax Officer - (Income Tax Appellate Tribunal) (12 Apr 2024)

Appeal before the CIT(A) should be admitted only when the assessee paid the advance tax where return of income has not been filed


Direct Taxation

In present case, the assessee has not filed original return of income for assessment year 2013-14 and the case was reopened for the reason that, the assessee purchased immovable property of Rs. 38,52,870 and also incurred stamp duty expenses at Rs. 1,89,000 thus, the total investment of assessee was Rs. 40,41,870. Notice under Section 147 of the Income Tax Act, 1961 was issued.

The assessee did not file return in response to the notice. The assessee filed reply thereby stating that the assessee is having less income which is below the taxable limit and therefore she was not required to file ITR for assessment year 2013-14. The assessee also filed copy of document deed on immoveable property transaction carried out in the financial year 2012-13. The Assessing Officer assessed total income of the assessee at Rs. 40,41,870.Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee for statistical purposes.

The provisions of Section 249(4)(b) of the IT Act is clear that, the appeal before the CIT(A) should be admitted only when the assessee paid the advance tax where return of income has not been filed. The proviso to said section also describes that, the assessee will get exemption from this clause, if the application is made before the CIT(A) for not filing return of income or paying advance tax. But in the present case in peculiar circumstances, the assessee has explained that the assessee herself has not obtained the said property but her son has paid the said amount for purchase of property from his own fund. In fact, the assessee's son is a joint owner of the said property and for the sake of conveyance specially the conveyance deed, the stamp deed is lesser therefore, the assessee's name has been utilised in the conveyance deed. The relation is direct relation between the mother and son and therefore this should have been considered by the Assessing Officer as well as by the CIT(A).

In the peculiar circumstances of the present case, the proviso to Section 249(4)(b) of the IT Act should have been pointed out by the CIT(A) during the hearing which the CIT(A) failed to do so. Merely on the technical ground, the appeal before the CIT(A) cannot be dismissed and in fact after seeing the merit of the case, it appears that the transaction was not doubted and the investment made by the son of the assessee was also not questioned by the Assessing Officer. Therefore, the appeal of the assessee is allowed. This decision is based on the peculiar facts of the present assessee's case and cannot be treated as precedent.The appeal of the assessee is allowed.


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