IN THE INCOME TAX APPELLATE TRIBUNAL

MUMBAI “K” (SMC) BENCH, MUMBAI

BEFORE SHRI SANDEEP SINGH KARHAIL, JM
AND
SHRI GIRISH AGRAWAL, AM
आयकर अपील सं./ITA No98/MUM/2025
( िनधारण वष / Assessment Year :2017-2018)
Russel Adrian Rodrigues, Vs. ITO, W ard-23(3)(1),
101, Diiago, “B” Sherly Ranjan Mumbai
Road, Bandra West, Mumbai
थायी ले खा सं ./PAN No. : ADWPR 7259 P
(अपीलाथ /Appellant) .. ( यथ / Respondent)

िनधा रती की ओर से /Assessee by : Shri Subhash Chhajed, AR

राज व क ओर से /Revenue by : Shri Kiran Unavekar, Sr.DR
सुनवाई क तारीख / Date of Hearing : 11/02/2025
घोषणा क तारीख/Date of Pronouncement : 14/02/2025

आदेश / O R D E R

Per Sandeep Singh Karhail, JM :

The assessee has filed the present appeal against the impugned

order dated 28/12/2024, passed under section 250 of the Income Tax Act

(“the Act”) by the learned Commissioner of Income Tax (Appeals),

National Faceless Appeal Centre, Delhi [“learned CIT(A)”], for the

assessment year 2017-18.

2. In this appeal, the assessee has raised the following grounds: –

1. On the facts and circumstances of the case and in law, Ld.

CIT(A) has erred in dismissing the Assessee's Appeal on
account of non-compliance of section 249(4)(a) and 249(4)(b) of
the IT Act., 1961 completely disregarding the fact that Assessee
has filed the Return and paid the due tax thereon as mentioned
in the column 8.1 of the Appeal Form No. 35. The Appellant
therefore prays to remand back the matter to Hon. CIT(A) for a
fresh adjudication on merits.
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2. On the facts and circumstances of the case and in law the Ld.
Commissioner of Income Tax (Appeals), National Faceless
Appeal Centre (NFAC), Delhi erred in dismissing the grounds of
appeal without disposing off each ground of appeal on merits,
without stating the reasons for determination and the decisions
thereon in terms of section 250(6) of the Income Tax Act., 1961.
The Appellant therefore prays to remand back the matter to Hon.
CIT(A) for a fresh adjudication on merits.

3. On the facts and circumstances of the case and in law, Ld.

CIT(A) has erred in confirming the impugned assessment order
u/s 144 r.w.s 147 of the Act completed by Ld. AO without
complying with the jurisdictional and mandatory requirements
and conditions envisaged in section 147/148/151 of the IT Act,
1961 and therefore the entire Reassessment proceedings u/s
147/148 of the Act are liable to be quashed as null and void And
bad in law.

4. The appellant craves the leave to add, modify, amend or delete

any of the grounds of appeal on or before the final hearing and
all the above grounds are without prejudice to each other

3. The solitary grievance of the assessee is against the dismissal of its

appeal by the learned CIT(A) by invoking the provisions of section 249(4)

of the Act.

4. We have considered the submissions of both sides and perused the

material available on record. The brief facts of the case are that the

assessee is an individual doing service in the corporate sector as a

service supervisor. For the year under consideration, the assessee filed

its return of income on 10/07/2017, declaring a total income of INR

7,74,560. Subsequently, on the basis of the information received that the

assessee has entered into a transaction of immovable property, wherein

the transaction value is less than the stamp duty value, proceedings

under section 147 of the Act were initiated and notice under section 148
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of the Act was issued on 25/06/2021. Pursuant to the directions of the

Hon’ble Supreme Court in U.O.I. v/s Ashish Agarwal, in Civil Appeal No.

3005 of 2022, an order under section 148A(d) of the Act was passed after

analysing the details/information available on record. Thereafter, notice

under section 148 of the Act was issued on 29/07/2022. However, in

response to the notice issued under section 148 of the Act, the assessee

did not file his return of income and also did not respond to various

statutory notices issued under section 142(1) of the Act as well as the

show cause notice issued during the re-assessment proceedings.

Accordingly, the Assessing Officer (“AO”) proceeded to complete the

assessment on best judgment on the basis of material available on

record, and vide order dated 20/05/2023 passed under section 147 read

with section 144 read with section 144B of the Act assessed the total

income of the assessee at INR 17,23,786, after making an addition of INR

9,49,226.

5. Being aggrieved, the assessee filed an appeal before the learned

CIT(A). Vide impugned order, the learned CIT(A) dismissed the appeal

filed by the assessee, in limine, on the basis that the assessee has failed

to make the payment of the amount of advance tax which was due on its

income, and thus as per the provisions of section 249(4) of the Act the

appeal is not maintainable.

6. During the hearing, the learned Authorised Representative

(“learned AR”) submitted that the assessee is a salaried employee and

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the entire tax was deducted at source. In this regard, the learned AR

referred to the copy of the return of income filed by the assessee on

10/07/2017 and submitted that the total tax and interest payable

amounting to INR 82,309 was already deducted at source, and therefore,

the entire tax liability as per the return of income was already duly

discharged by the assessee. In this regard, the assessee has also placed

on record Form No. 16. Accordingly, the learned AR submitted that the

condition as laid down in the provisions of section 249(4)(a) of the Act is

duly satisfied in the present case.

7. Before proceeding further, it is relevant to note the provisions of

section 249(4) of the Act, which reads as follows: –

“(4) No appeal under this Chapter shall be admitted unless

at the time of filing of the appeal,—

where a return has been filed by the assessee, the

assessee has paid the tax due on the income returned by
him; or

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 behalf, 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.”

8. Therefore, as per the provisions of section 249(4) of the Act, an

appeal before the learned CIT(A) is not admitted unless the assessee has

paid the taxes due on the income returned by him or in a case where no
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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. From the

perusal of the material available on record, it is evident that the assessee

filed its return of income on 10/07/2017, a copy of which forms part of the

paper book on page 1. From the perusal of the return of income filed by

the assessee, it is further evident that the entire tax payable by the

assessee amounting to INR 82,309 was deducted at source, and in

respect of same the assessee has also placed on record Form No. 16,

forming part of the paper book from pages 2-3. Thus, we are of the

considered view that the condition as laid down in the provisions of

section 249(4)(a) is duly satisfied by the assessee in the present case.

9. Further, as regards the conditions laid down in clause (b) of section

249(4) of the Act, the requirement of paying the advance tax can only

arise in a situation where the assessee did not file his original return of

income. However, we are of the view that such a condition cannot be

invoked in the present case as the assessee had duly filed its original

return of income and the taxes due had already been deducted from the

source. Further, even if it is considered that the assessee did not file its

return of income in response to the notice issued under section 148 of the

Act, it is pertinent to note that the question of paying the advance tax in

the re-assessment proceedings cannot arise. In this regard, reliance is

placed upon the decision of the coordinate bench of the Tribunal in M/s
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Nine Global Industries Private Limited v/s DCIT, in ITA No.

3889/Mum./2023, vide order dated 16/04/2024.

10. Before concluding, we may also note that in Form No. 35 filed by

the assessee before the learned CIT(A), in Column No. 8.1, the assessee

duly provided the date of filing of the return of income and the amount of

taxes paid. However, we find that in Column No. 9, in response to the

query whether the assessee has paid the advance tax if no return has

been filed, the assessee responded as “No”, which in light of the

documents placed on record and analysis of the provisions of section

249(4) of the Act appears to be merely an inadvertent error. Therefore, we

are of the considered view that the learned CIT(A) laid undue emphasis

on the same for dismissal of the assessee’s appeal, at the very threshold,

without adjudicating the appeal on merits.

11. Thus, in view of the facts and circumstances of the present case,

legal position and judicial pronouncements as noted above, we are of the

considered view that the assessee has duly satisfied the conditions laid

down in the provisions of section 294(4) of the Act and the impugned

order dismissing the appeal on the ground of non-compliance of the

aforesaid provisions cannot be sustained. Accordingly, the impugned

order passed by the learned CIT(A) is set aside and the assessee’s

appeal is restored to the file of the learned CIT(A) for adjudication on

merits as per law, after providing adequate and reasonable opportunity of

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hearing to the parties. With the above directions, grounds raised by the

assessee in the present appeal are allowed.

12. In the result, the appeal by the assessee is allowed.

Order pronounced in the open court on 14/02/2025.

Sd/- Sd/-

(GIRISH AGRAWAL) (SANDEEP SINGH KARHAIL)

लेखा सद य / ACCOUNTANT MEMBER याियक सद य / JUDICIAL MEMBER

मुब
ं ई/ Mumbai; दनांक Dated 14/02/2025
Prakash Kumar Mishra, Sr.P.S.(on tour)
आदेश क ितिलिप अ िे षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant- .
Russel Adrian Rodrigues,
101, Diiago, “B” Sherly Ranjan Road,
Bandra West, Mumbai
2. यथ / The Respondent-
ITO, W ard-23(3)(1), Mumbai
3. आयकर आयु (अपील) / The CIT(A),
4. आयकर आयु / CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, मुं बई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER,

स यािपत ित //True Copy//
(Assistant Registrar)
आयकर अपीलीय अिधकरण, मुब
ं ई/ ITAT, Mumbai