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TMI Blog2019 (2) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Singh Sachdev, a Partner of the assessee firm. On the basis of the averments made in the delay condonation petition and the affidavit, the learned Authorised Representative submitted, Shri Prithipal Singh Sachdev is a Partner of the firm who was looking after the Income Tax matters, finance and accounting affairs of the firm. He submitted, the said Partner, being 75 years old, is suffering from various old age related medical and health issues like ischemic Heart diseases with poor cardiac function, peripheral neuropathy, prostate, diabetes and erratic high blood pressure, hence, is under constant medication. He submitted, due to the continuous ill health, particularly from August 2017 to April 2018, the said Partner was instructed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come on 30th September 2009, declaring total income of Rs. 17,90,190. Assessment in case of the assessee was originally completed under section 143(3) of the Income Tax Act, 1961 (for short "the Act") on 21st October 2011, by determining the total income at Rs. 18,96,742. Subsequently, on the basis of information received from the DGIT (Inv.), Mumbai, and Sales Tax Department, Government of Maharashtra, that certain purchases claimed to have been made by the assessee are not genuine, the Assessing Officer re-opened the assessment under section 147 of the Act. During the re-assessment proceedings, the Assessing Officer called upon the assessee to prove the genuineness of purchases of Rs. 52,22,979, claimed to have been made from five parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the first appellate authority without properly knowing the merits of the issue and the consequences which may follow after withdrawal of appeal. He submitted, for the very same reason the said partner also decided against filing any appeal challenging the order of the learned Commissioner (Appeals) which resulted in delay in filing the present appeal. He submitted, only after the main Partner who was looking after the Income Tax matters partly recovered from his illness, he came to know about withdrawal of appeal and decided to contest the issue on merit by filing the appeal before the Tribunal. The learned Authorised Representative submitted, notwithstanding the fact that the assessee has filed a letter seeking withdrawal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) dismissed assessee's appeal in limine without deciding it on merit. Therefore, the issue which arises for consideration before me is, whether as per the provisions of section 251 of the Act, learned Commissioner (Appeals) can permit withdrawal of the appeal by dismissing it in limine without deciding on merits. As per the provisions of section 251(1)(a) of the Act, the first appellate authority is conferred with the powers to decide an appeal against an order of assessment by confirming, reducing, enhancing or annulling the assessment. Even, the power to set-aside an assessment order was taken away from the first appellate authority by the amendment brought to the statute in Finance Act, 2001, w.e.f. 1st June 2001. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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