TMI Blog2019 (2) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee before the learned Commissioner (Appeals) is restored back to its original position. It is open for the assessee to raise all such issues before the first appellate authority for contesting the assessment order passed by the Assessing Officer. Needless to mention, the learned Commissioner (Appeals) must afford reasonable opportunity of being heard to the assessee before deciding the appeal. With the aforesaid observations, the grounds raised are allowed for statistical purposes. - Appeal is allowed for statistical purposes. - ITA no. 2366/Mum./2018 - - - Dated:- 16-1-2019 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER For The Assessee : Shri Dharmesh Shah For The Revenue : Shri Chaitanya Anjaria ORDER Afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative submitted, since the delay is for bona fide reasons and due to reasonable cause, it should be condoned and the appeal be admitted for hearing on merits. In support of his contentions, the learned Authorised Representative relied upon a number of decisions including the decision of the Hon'ble Supreme Court in Collector of Land Acquisition v/s Mst. Katiji Ors., 167 ITR 471 (SC). 3. The learned Departmental Representative opposed condonation of delay. of delay. 4. I have considered rival submissions and perused material on record. Upon verifying the averments made in the delay condonation petition and the affidavits of the partners filed before me along with the medical certificates, I am of the view that the delay in filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked out to ₹ 6,52,870. The aforesaid amount was added to the income of the assessee. Being aggrieved with such addition, the assessee preferred appeal before the first appellate authority. 6. It is evident, in the course of hearing before the learned Commissioner (Appeals), the assessee filed letter dated 19th September 2017, seeking withdrawal of the appeal. Taking note of the aforesaid letter filed by the assessee, learned Commissioner (Appeals) dismissed the appeal as withdrawn. Against the aforesaid order of the learned Commissioner (Appeals), the assessee is in further appeal before Tribunal. 7. Explaining the reason for withdrawal of appeal filed before the first appellate authority, the learned Authorised Representative s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cide assessee s appeal on merit. In support of his contention, the learned Authorised Representative relied upon the following decisions: i) CIT v/s Rai Bahadur Hardutroy Motilal Chamaria, [1967] 66 ITR 443 (SC); ii) Biswaranjan Bysack v/s CIT, 1967] 66 ITR 452 (SC); iii) CIT v/s Premkumar Arjundas Luthra (HUF), ITA no.2336 of 2013, dated 25.04.2016; [2017] 297 CTR 614 and iii) CIT v/s Premkumar Arjundas Luthra (HUF), ITA no.2336 of 2013, dated 25.04.2016; [2017] 297 CTR 614 and iv) M. Loganathan v/s ITO, [2013] 350 ITR 373 (Mad.). 8. The learned Departmental Representative submitted, since the assessee filed a letter seeking withdrawal of appeal, it was not necessary for the learned Commissioner (Appeals) to dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 8. From the aforesaid provisions, 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/or penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. 10. Similar view was expressed by the Hon'ble Madras High Court in M. Loganathan (supra). If the ratio laid down in the aforesaid decisions is carefully examined, it clearly emerges that learned Commissioner (Appeals), notwithstanding the fact that the assessee has filed an application seeking withdrawal of the appeal, is obliged and duty bound under the Act to decide the appeal on merits within the parameters of section 251(1)(a) of the Act. Thus, following the ratio laid down in the aforesaid decision, I have to hold that while dismissing assessee s appeal in limine without deciding on merit, learned Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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