TMI Blog2019 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessee : None For The Revenue : Shri Sridhar Dora, Sr. DR ORDER PER: ANADEE NATH MISSHRA, AM This appeal by Assessee is filed against the order of the Learned Commissioner of Income Tax (Appeals)-16, New Delhi, [ Ld. CIT(A) for short], dated 15.02.2016, for Assessment Year 2011-12, on the following grounds: 1. Ld. CIT (Appeals), without appreciating the correct facts of the case and without giving proper opportunity of being heard is not justified in law and facts and circumstances of the case in not deciding the appeal on the merits of the case and as well as on validity /legality of assessment order passed by ld. Assessing Officer without having the jurisdiction over the case. 2. That Ld. CIT(A) without appreciating the correct facts of the case giving proper opportunity of being heard is not justified in law and facts and circumstances of the case in confirming the addition of ₹ 12,52,000/- under section 69 of the I.T. Act on account of cash deposit in bank account made by ld. Assessing Officer. 3. That Ld. CIT(A) without appreciating the correct facts of the case and giving proper opportunity of being heard is not justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to 11/02/2016. No one attended on 11/02/2016 or till the passing of this order. From the opportunities given to the assessee and his non compliant attitude, it is clear that appellant is not interested in prosecuting his case. As there is nothing on record to rebut the conclusion drawn by the Assessing Officer. The additions made by AO are confirmed. In the result the appeal of the appellant is dismissed. (3.1) The Assessee filed appeal in Income Tax Appellate Tribunal (ITAT), against the impugned order dated 15/02/2016 of the Ld. CIT(A). We find from the perusal of record, that the following grounds of appeal were raised by the Assessee before the Ld. CIT(A). 1. That order passed by ld. Assessing Officer is without jurisdiction and bad in law and should be quashed ab-initio. 2. That without prejudice to ground of appeal no. 1, order passed by ld. assessing officer is barred by limitation and bad in law and should be annulled. 3. That without prejudice to ground of appeal no. 1 and 2 ld. Assessing Officer without appreciating the correct facts of the case and giving proper opportunity of being heard is not justified in law and facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of appeal not specified in the grounds of appeal, if the Commissioner (Appeals) is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable. ( 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. [( 6A) In every appeal, the Commissioner (Appeals), where it is possible, may hear and decide such appeal within a period of one year from the end of the financial year in which such appeal is filed before him under sub-section (1) of section 246A ( 7) On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order 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 Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration the provisions U/s 250(6) read with sections 250(4), 250(5), 251(1)(a), 251(1)(b) and Explanation of Section 251(2) of I.T. Act , we come to the conclusion that the Ld. CIT(A) is not empowered to dismiss the appeal for non-prosecution of appeal and is obliged to dispose of the appeal on merits. Once the Assessee files an appeal U/s 246A of I.T. Act, the Assessee sets in motion the machinery designed for disposal of the appeal under Sections 250 and 251 of I.T. Act. If the appeal filed by the assessee fulfils the requirements of maintainability and admissibility prescribed under Sections 246, 246A, 248 and 249 of I.T. Act; neither the Assessee can stop the further working of that machinery as a matter of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to dismiss appeal in limine for non-prosecution of appeal by the assessee. We draw support from order of Hon ble Bombay High Court in the case of CIT vs. Premkumar Arjundas Luthra (HUF) [2016] 240 taxman 133 for the propositions that Ld. CIT(A) is required to apply his mind to all issues which arise from impugned order before him whether or not same had been raised by appellant before him; and that CIT(A) is obliged to dispose of the appeal on merits. In this case, it was held as under: 8 it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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