TMI Blog2018 (10) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) is duty bound to provide reasonable opportunity of being heard to the assessee. Valid service of notice of hearing is part of that duty. On cumulative consideration of these facts and circumstances, and the legal position, the presumption of Ld. CIT(A), that the assessee did not wish to pursue the appeal, stands demolished and the impugned order of Ld. CIT(A) based on this presumption has no legs to stand. In any case, when the requirement U/s 250(1) and (2) of I.T. Act are not complied with at the end of Ld. CIT(A), the appellate order passed U/s 250(6) of I.T. Act by Ld. CIT(A) suffers from infirmity and cannot be upheld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non-prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 - Appeal of the Assessee is treated as partly allowed for statistical purposes. - ITA No:- 1912/Del/2018 - - - Dated:- 16-10-2018 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER For The Assessee : Sh. Rakesh Jain, Adv. And Sh. Gurjeet Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A), the Assessee did not appear before him. (3) We have heard both sides attentively and patiently. We have also carefully perused the materials on the record. We find that the order of Ld. CIT(A) does make a mention of the hearing notices issued by him, but the order does not contain any reference of the actual service of these notices. The Ld. DR also failed to produce any evidence that the notices of hearings issued by the Ld. CIT(A) were actually served on the Assessee. We also find that the Ld. CIT(A) has not passed speaking order on merits of the additions made by the AO, and the only basis for dismissing the Assessee s appeal was non-prosecution of the appeal by the assessee in appellate proceedings before Ld. CIT(A) which led the Ld. CIT(A) to the presumption that the Assessee did not wish to pursue the appeal. As noted earlier in para (2.1.1), the Ld. CIT(A) dismissed assessee s appeal in limine for non-prosecution of appeal by Assessee. (3.1) On perusal of records before us, we find that the impugned appellate order of Ld. CIT(A) was received by the assessee on 08/03/2018, and the assessee promptly filed this appeal in ITAT on 19/03/2018. The assessee also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by him to the assessee and to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. 251. ( 1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- ( a) In appeal against an order of assessment, may confirm, reduce, enhance or annual the assessment ( aa) In appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, 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; ( c) In any other case, he may pass such orders in the appeal as he thinks fit. ( 2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f right by withdrawing the appeal, or by not pressing the appeal, or by non-prosecution of the appeal; nor the first appellate authority, CIT(A) in this case, can halt this machinery by ignoring either the procedure in appeal prescribed U/s 250 of I.T. Act or powers of Commissioner (Appeals) prescribed U/s 251 of I.T Act. CIT(A), the first appellate authority, cannot dismiss assessee s appeal in limine for non- prosecution without deciding the appeal on merits through an order in writing, stating the points of determination in the appeal, the decision thereon and the reason for the decision. It is well-settled that powers of Ld. CIT(A) are co-terminus with powers of the Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that AAC has plenary powers in disposing off an appeal; that the scope of his power is co-terminus with that of the ITO, that he can do what the ITO can do and also direct him to do what he failed to do. In this context, useful reference may also be made to Apex Court s decisions in the cases of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 and CIT vs. B.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumulative consideration of these facts and circumstances, and the legal position, the presumption of Ld. CIT(A), that the assessee did not wish to pursue the appeal, stands demolished and the impugned order of Ld. CIT(A) based on this presumption has no legs to stand. In any case, when the requirement U/s 250(1) and (2) of I.T. Act are not complied with at the end of Ld. CIT(A), the appellate order passed U/s 250(6) of I.T. Act by Ld. CIT(A) suffers from infirmity and cannot be upheld. For the removal of this infirmity, the order passed by Ld. CIT(A) needs to be set aside for fresh order at his end. (4.2) In view of the foregoing paragraphs (3.1), (4), (4.1) and (4.1.1) of this order, we hold that the Ld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non-prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 of I.T. Act; for fresh disposal of appeal filed by the assessee before Ld. CIT(A) against the aforesaid Assessment Order dated 17.03.2016. In the result, Appeal of the Assessee is treated as partly allowed for statistical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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