TMI Blog2021 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the various High Courts and Hon'ble Supreme Court that the ld. Commissioner required to pass the order on merits stating the points for determination, decision thereon and reasons for decision. In the instant case, there is no dispute that the Ld. Commissioner has confirmed the order of the AO for non-prosecution, therefore, in the interest of justice, we consider it is appropriate to remand the matter back to the ld. Commissioner to decide the appeal on merits. Accordingly, appeal of the assessee is allowed for statistical purpose. - I.T.A. No. 172/VIZ/2019 - - - Dated:- 5-5-2021 - N.K. Choudhry, Member (J) And D.S. Sunder Singh, Member (A) Assessee by : None Department by : Smt.Suman Malik, DR ORDER PE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown any interest in prosecuting the appeal despite several notices issued. Therefore, it l's elucidated that the appellant either not interested in prosecuting the appeal or no information/evidences to produce before the undersigned. Therefore, I do 'not find any reason to interfere with the order of the AO and accordingly, the order of the Assessing Officer is hereby confirmed and grounds raised by the appellant. 3. Against the order of the ld. Commissioner, the assessee filed an appeal before this Tribunal and placed the written submissions with regard to merits of the assessee's case. 4. We have heard the Ld. DR and gone through the ex parte order passed by the Ld. Commissioner for non-prosecution without discussin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which arose from the impugned order before him, whether or not these issues had been raised by the Assessee before him. Also, Section 251(1)(a) of I.T. Act provides that while disposing of an appeal against Assessment Order, Commissioner (Appeals) shall have the power to confirm, reduce, enhance or annul the assessment. Similarly, the section 251(1) (b) provides that in disposing of an appeal against an order imposing a penalty, Commissioner (Appeals) may confirm or cancel such orders or vary it so as to either to enhance or to reduce the penalty. On cumulative 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443 and CIT v. B.N. BhattacharJee [1979] 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 authority can proceed with the enquiry and if he finds that there has been an under-assessment, he can enhance the assessment. Just as, once the assessment proceedings are set in motion, it is not open to the Assessing Officer to not complete the Assessment Proceedings by allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. 5. As already noted in foregoing paragraph (4.1) of this order, the Ld. 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. In view of the foregoing; we set aside the impugned order of the Ld. CIT(A) and restore the matter to the file of the Ld. CIT(A) with the direction to pass fresh order on admissibility and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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