TMI Blog2019 (7) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... ed U/s 250 or powers of Commissioner (Appeals) prescribed U/s 251. 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 AO. DR did not express any objection to the prayer made on behalf of the assessee for setting aside the order of the Ld. CIT(A) with a direction to Ld.CIT(A) to pass fresh order. We expressly hold that e-filed documents and other attachments, as well as other information submitted by the assessee at the time of e-filing of appeal before the CIT(A) must be treated as part of the record of the Ld.CIT(A) and must receive proper consideration at the end of the CIT(A). If the Ld.CIT(A) is satisfied about admissibility and maintainability of the appeal filed by the assessee before the Ld.CIT(A); then the Ld.CIT(A) is further directed to pass order on merits; stating the points for determination; the decision thereon, and reasons for the decision. - For statistical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the assessee and by not providing cross examination of persons whose statements have been relied upon, thus no proper and reasonable opportunity of hearing has been allowed and principles of natural justice is grossly violated which makes the impugned asstt. unsustainable in law. 5. That there is no basis and material to justify the findings of AO for addition of ₹ 8,74,496/- u/s. 69C as alleged unexplained commission exp. @3% of LTCG. The Ld. AO also erred in calculating 3% on total sale proceeds against findings of 3% on LTCG amt. 6. The AO erred in law in charging tax on addition of ₹ 2,91,49,846/- at the special rate u/s. 115BBE. (2) The Assessment Order U/s 143(3) of the Income Tax Act, 1961 ( I.T. Act for short) was passed on 27/12/2017, in which the total income was assessed at ₹ 3,27,56,502/- as under: Total income returned: ₹ 27,59,160/- 1. Addition u/s 68 read with section 115BE ₹ 2,91,49,846/- 2. Addition U/s 69C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,38,84,900/- against the return of income not available from the record of this office as the appellant has not filed the impugned assessment order despite repeated opportunities allowed by this office. The said assessment order not placed on record of this office has been impugned in the present appeal and is being contested by the appellant on the grounds of jurisdiction as well as merit. 2. Pursuant to the notice issued by this office requiring the appellant to file the copy of the impugned assessment order, demand notice and the challan for payment of fee, a letter was received from Shri Aman Gupta, CA stating that the written submission and paper book was under preparation and compilation of necessary papers was required to prepare the appeal which was received from earlier counsel and therefore, the case was required to be adjourned. 3. It is not understood what is the nexus between filing of statutory documents mandatory for admitting the appeal and preparation of paper book or other such details. The impugned assessment order was received by the appellant on 27.12.2017 and the subject appeal has been filed on 10.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) order for not filing the asstt. order - The asstt. order was duly filed with e-filed appeal (5) - Further all other documents namely details of challan, demand notice, challan, and other attachments were e-filed with appeal (2-6) - Details of challan also filled up in Form-35 without which appeal cannot be e-filed. (3) - Also, form-35 could not be uploaded without attachments. - Hence, the appeal was correctly filled and was liable to be admitted by CIT(A). - Further. Sec.249 nowhere provides that even alleged non filing of asstt. order, will make the appeal non admissible. - Hence, the appeal not admitted for non compliance of Sec.249 is also contrary - Covered by ITAT order in case of Akasnha Singhal wherein same CIT(A) vide similar order dismissed the appeal, which stood set aside by Hon ble ITAT to CIT(A) vide ITA No. 820/Del/2019, order dtd. 23.04.2019. (4.) At the time of hearing before us, the Ld.AR for the assessee reiterated the submissions as per the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of appeal raised by the assessee in appeal before the Ld.CIT(A). The Ld. Departmental Representative ( DR , for short) did not express any objection to this prayer of the assessee. The Ld. DR also did not dispute or controvert the facts claimed and submissions made from assessee s side in the synopsis referred to in the foregoing paragraph (3.3.1) of this order. (4.1.1) We have heard both sides patiently. We have also carefully perused the materials on record. The relevant provisions under I.T. Act regarding maintainability of appeal made to Commissioner (Appeals) and regarding procedure in appeal, and powers of the Commissioner [Appeals] are contained in Sections 249, 250 and 251 of I.T. Act, which are reproduced below for ready reference: 249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of,- (i) where the total income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause. 250. (1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal, and shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. (2) The following shall have the right to be heard at the hearing of the appeal- (a) the appellant either in person or by an authorized representative; (b) the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant. Se More (4.1.2.) Ld.CIT(A) dismissed assessee s appeal by holding that the assessee had not complied with section 249 of I.T.Act. However, perusal of foregoing paragraphs (3.3), (4) and (4.1) shows that the assessee denied these allegations in written submissions as per synopsis, as well as through oral submissions at the time of hearing; and further, that the facts claimed and submissions made in these written as well as oral submissions made on behalf of the assessee have not been neither disputed nor controverted by the Learned DR. Thus, the assessee s claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Bhattachargee 118 ITR 461 (SC) for the proposition that an assessee having once filed an appeal, cannot withdraw it and even if the assessee refuses to appear at the hearing, the first appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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