TMI Blog2021 (5) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for decision. In the instant case, there is no dispute that the Ld. Commissioner has confirmed the order of the AO for non-prosecution without considering the merits. Therefore, in the interest of justice, we consider it is appropriate to remand the matter back to the file of the Ld. Commissioner to decide the appeal on merits. Accordingly, appeal of the assessee is allowed for statistical purpose. - I.T.A. No. 224/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, Sr. DR ORDER Per D.S. Sunder Singh, Accountant Member This appeal has been preferred by the assessee against the order dated 12/03/2019 impugned herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed. 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 Ld. DR and gone through the ex parte order passed by the Ld. Commissioner for non-prosecution without considering the merits of the case. Though, the Ld. Commissioner is permitted to pass the ex-parte order but the same should be on merits. In the instant case, the Ld. Commissioner passed the order without considering the merits. The ITAT, Delhi Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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 underassessment, 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 the Assessee to withdraw Return of Income; it is similarly, by analogy, not open for Ld. CIT(A) to not pass order on merits on account of non-prosecution of appeal by the Assessee or if the Assessee seeks to withdraw the appeal or if the assessee does not press the appeal. When the Commissioner (Appeals) dismisses the appeal of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regoing 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 maintainability of the appeal filed by the assessee before the Ld. CIT(A), after giving due consideration to e-filed documents and other attachments submitted by the assessee at the time of e-filing of appeal, We expressly hold that e-filed documents and other attachments, as well as other information submitted by the assessee at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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