TMI Blog2017 (1) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authorities cannot take a pedantic view while dealing with this sort of matters. While respectfully following the ratio of the above decision, we hold that it is a fit case to condone the delay and to receive the appeal for consideration on merits. Point no. 1is answered in favour of the assessee. Dismissing the appeal on the withdrawal of the same by the assessee - Held that:- When the appeal was dismissed as withdrawn at the instance of the assessee, it is not open for the assessee to take a turnaround and to contend that the dismissal of the appeal by the Ld. CIT(A) is without any jurisdiction. While respectfully following the judicial reasoning delineated above, we hold that it is a fit case to set aside the matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to withdraw the appeal. Since the assessee himself sought such a permission the Ld. CIT(A) recorded the same and dismissed the appeal as withdrawn. 3. However, subsequently, stating that the assessee was advised to approach the ITAT, this appeal is preferred by the assessee with a delay of 263 days on the following grounds: 1. For that under the facts and circumstances of the case the Ld. Appellate Authority failed and neglected to appreciate the facts and merit of the case and has allowed to withdraw the appeal as was filed by the petitioner on wrong advice of the authorised representative. 2. For that the Ld. Appellate Authority failed and neglected to consider the grounds of appeal and has simply allowed to withdraw the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether there is any justification on the part of the assessee to seek condonation of the delay of 263 days in preferring this appeal? (ii) Whether the Ld. CIT(A) is justified in dismissing the appeal before him on the withdrawal of the same by the assessee? (iii) To what relief? POINT No. 1 6. By way of an affidavit it is the contention of the assessee that having been served with the order in the appeal passed by the Ld. CIT(A) on 28.06.2012 he approached one Shri Anup Kr. Dutta, advocate for advice and handed over all the papers to him. However, all of a sudden the Ld. Advocate had fallen ill and was subsequently admitted into hospital. Ultimately, the Ld. Advocate succumbed to death on 25.10.2013. In these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel. 8. It is the argument of the Ld. AR of the assessee that the assessee had a meritorious case before the ld. CIT(A) but while laboring under a wrong advice by his counsel the assessee thought it necessary to present a petition seeking withdrawal. It is his further argument that even if the assessee seeks withdrawal of the matter, still it is incumbent upon the Ld. CIT(A) to proceed further on the merits of the matter and to reach a just tax liability of the assessee instead of dismissing the appeal as withdrawn. 9. Ld. Counsel for the assessee placed reliance on a decision reported in Bhartia Steel Engineering co. Pvt. Ltd. Vs. ITO (1974) 97 ITR 154 (Cal) wherein the jurisdictional High Court while following the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenging the jurisdiction of the Tribunal in allowing it to withdraw the appeal. The said order is a void order. 10. Further reliance is placed on a decision of a Coordinate Bench of this Tribunal in J. K. Barooah Vs. ITO (1989) 31 ITD 7 (Gau) wherein while following the decision of the Hon ble jurisdictional High Court in Bhartia Steel Engg. Co. (P) Ltd. Vs. ITO (1974) 97 ITR 154 (Cal) it was observed that once an assessee has filed an appeal against an assessment order, the assessee sets the judicial machinery in motion and cannot be allowed to withdraw the appeal and the appellate authority has to dispose of the matter on merits without allowing such appeal to be withdrawn. 11. The observation of the Hon'ble jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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