TMI Blog2023 (10) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee opting for an alternative remedy and the issues raised before him will again be the subject matter of adjudication before the ld. CIT(E). We are of the considered view that the application made by the assessee for withdrawal of appeal before the ld. CIT(A), was a conscious effort towards getting relief by taking recourse to Section 264 of the Act and the ld. CIT(A) has just acted within the four corners of law in order to provide remedy to the assessee, for which it is eligible, u/s 264 of the Act, and he gave the assessee a way for doing the same because without doing so proceedings u/s 264 of the Act could not be initiated in terms of provision of Section 264(4)(b) of the Act. Therefore, by doing so the ld. CIT(A) has acted well within the powers provided u/s 250 of the Act. In view of the above discussion, we fail to find any infirmity in the action of the ld. CIT(A) dismissing the appeals of the assessee has withdrawn and not dealing with the merits of the case in pursuance to the application for withdrawal filed by the assessee to take recourse u/s 264 of the Act and uphold the same. Assessee appeal dismissed. - DR. MANISH BORAD, HON BLE ACCOUNTANT MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings were also carried out for Assessment Year 2014-15 and Assessment Year 2018-19 and the benefit of exemption Section 11 of the Act was denied and the income over expenditure assessed as income of an association of person taxable at maximum marginal rate. 4. Aggrieved the assessee preferred appeal before the ld. CIT(A) raising the legal grounds challenging the validity of the assessment order and also raising grounds on merit challenging the addition made on account of denial of exemption u/s 11 of the Act. During the course of pendency of the appeal before the ld. CIT(A), assessee suo moto uploaded written request on 22/03/2023, for priority disposal of the appeals. Again on 02/03/2023, assessee filed an application before the ld. CIT(A) stating to withdraw the appeals on the ground that the assessee wants to opt for option u/s 264 of the Act. It was also submitted in the said application that without withdrawal of these appeals the assessee s petition u/s 264 of the Act cannot be entertained. The said application is appearing at para 5.1. of the impugned order. In the said application it is also stated that since the application u/s 264 of the Act is barred by time on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) against the same impugned assessment order. Mr. Khaitan, learned senior advocate appearing for the petitioner submits that the petitioner is aggrieved by refusal on the part of the Commissioner to allow it to withdraw the revision application which was refused and impugned order was passed. It appears from record that the statutory appeal before the CIT(Appeals) against the same assessment order which petitioner wanted to withdraw the CIT (Appeals) allowed the same and after order of the CIT (Appeals) allowing withdrawal of the appeal in question the aforesaid impugned order under Section 264 of, the Act was passed. Mr. Khaitan also submits that after the order of the CIT (Appeals) allowing the petitioner to withdraw the appeal, petitioner had filed an application under Section 154 of the Act and appeal was also filed before the Tribunal being ITA 275/Kol/2023 dated 28th March, 2023 against allowing the petitioner to withdraw its appeal and which is still pending. The fact remains that in the eye of law appeal is not alive before the CIT (Appeals) on date and that the Commissioner passed order under Section 264 of the Act after with drawl of appeal by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein the Hon ble Court has held that ..if Assessee having filed an appeal and brought the machinery of the Act into working, cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the, real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appeal at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if he finds that there, has been an underassessment, he can enhance the assessment Reference was also made to the judgement of the Hon ble Madras High Court in the case of M. Loganathan vs. ITO reported in [2013] 350 ITR 373 (Mad.) and held that There is no justification to read into the provision under section 251 as to the objection or no objection from the revenue for such withdrawal. Reference was also made to the judgement of the Hon ble High Court of Bombay in the case of CIT vs. Premkumar Arjundas Luthra (HUF) reported in [2016] 69 taxmann.com 407 (Bom.) and the decision of the SMC Bench of ITAT Mumbai in the case of M/s. Deekay Gears vs. ACIT in ITA No. 2366/Mum/2018; AY 2009-10, order dt. 16/01/2019. 7.1. The crux of the arguments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue where the assessee in order to apply for the petition u/s 264 of the Act, has withdrawn the appeal pending before the ld. CIT(A). 10.1. In the case of Rai Bahadur Hardutroy Motilal Chamaria (supra), the issue was that assessee filed the appeal before the appellate Asst. Commissioner and then withdrew the appeal without quoting any reason and such application of the assessee was with an intention to stop the appellate proceedings. Hon ble Court found that the machinery of the act was set into motion the moment when the assessee filed the appeal and then complete assessment records of the assessee were open before the learned appellate Asst. Commissioner and in case of any issues which the Assessing Officer had not noticed and prejudice may have been caused to the revenue then under such circumstances the appellate Asst. Commissioner has to carry out the proceedings for ascertaining and settling the real sum to be assessed. However, in the instant case the facts are different and it is a case where the proceedings have just been shifted from ld. CIT(A) to ld. CIT(E) and similar grounds have been raised in the petition u/s 264 of the Act and, therefore, the judgement of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (c) in any other case, he may pass such orders in the appeal as he thinks fit. 70 [(1A) In disposing of an appeal, the Joint Commissioner (Appeals) shall have the following powers (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or 67 annul the assessment; (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. ] (2) The 71 [***] 72 [Joint Commissioner (Appeals) or the] 73 [Commissioner (Appeals)] 72 [, as the case may be,] 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 74 [***] 75 [Joint Commissioner (Appeals) or the] 76 [Commissioner (Appeals)], may consider and decide 77any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the 74 [***] 75 [Joint Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1. Now, on going through the above judgement, we notice that the assessee should not be left remediless. In this case had the assessee been able to get any relief in the proceedings u/s 264 of the Act, then the instant appeal must have been withdrawn or not pressed by the assessee but because the assessee did not get any relief in the proceedings u/s 264 of the Act, this action of the assessee is like taking chance again before the ld. CIT(A). The issues which were raised before the ld. CIT(A), had been raised before the ld. CIT(E) and the same has been decided against the assessee. Now the order u/s 264 of the Act, is the subject matter of the appeal before the Hon ble Jurisdictional High Court. 15. Under these given facts and circumstances, we are of the considered view that the application made by the assessee for withdrawal of appeal before the ld. CIT(A), was a conscious effort towards getting relief by taking recourse to Section 264 of the Act and the ld. CIT(A) has just acted within the four corners of law in order to provide remedy to the assessee, for which it is eligible, u/s 264 of the Act, and he gave the assessee a way for doing the same because without doing so p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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