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TMI Blog2023 (10) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... revision petition u/s 264 was erroneous. 2.0 For that the appeal filed before the Ld. CIT (Appeals) could not in law or in fact be withdrawn or dismissed as such. 3.0 For that the Ld. CIT(Appeals) should have adjudicated the grounds of appeal on merits. The Appellant craves leave to alter, amend or withdraw all or any of the grounds herein or add any further grounds as may be considered necessary either before or during the hearing." 3. Facts in brief are that the assessee is a trust registered under section 12A of the Act. It filed its return of income on 28/09/2013 for Assessment Year 2013-14 disclosing Nil income. Assessment was framed u/s 143(3) of the Act on 22/01/2016. Thereafter the case was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act dt. 04/11/2019. Re-assessment proceedings were carried out and the ld. Assessing Officer after considering the submissions of the assessee came to a conclusion that the association is involved in the activity of rendering services in relation to trade, commerce or business, receipt from which constitute a substantial portion of the gross receipt and, therefore, the assessee is hit by the proviso to sub-Section (15) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest of the assessee was not accepted by the ld. CIT(E) and after giving detailed finding and considering all the submissions made by the assessee and the settled judicial precedents, the ld. CIT(E), held that no revision is called for in the order of the Assessing Officer for all the three assessment years. 6. Aggrieved, the assessee filed a writ petition before the Hon'ble Jurisdictional High Court challenging the order passed u/s 264 of the Act, dt. 30/03/2023. During the course of hearing before the Hon'ble Court, it was submitted by the assessee that the order of the ld. CIT(A) dismissing the assessee's appeal as withdrawn has been challenged before the ITAT, vide ITA No. 275, 276 and 277/Kol/2023. Considering this fact that the appeals against the order of the ld. CIT(A) is pending, the Hon'ble Court vide order sheet dated 25/07/2023, gave the following directions to this Tribunal for disposing of the pending appeals in accordance with law and on its merit within the month of August, 2023, observing as follows:- "By this writ petition, petitioner has challenged the impugned order dated 30th March, 2023 passed under Section 264 of the Income Tax Act, 1961 relating to asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider and dispose of the pending appeal in question in accordance with law and on its own merit within the month of August, 2023. It is clarified that this Court has not gone into the merit of the pending appeal in question before the ITAT and the same shall be decided strictly in accordance with law. Let the respondents file affidavit-in-opposition within ten weeks from date; Petitioner to file reply thereto, if any, within two weeks thereafter. List this matter for final hearing in the monthly list of November, 2023. No coercive action for recovery shall be taken on the basis of final order if passed during the pendency of the writ petition in the penalty proceeding in question." 6. In pursuance to the directions of the Hon'ble Jurisdictional High Court, these appeals were taken up for hearing. The assessee has taken the ground that the ld. CIT(A) has erred in dismissing the appeals of the assessee as withdrawn because the appeals filed before the ld. CIT(A) could not in law or on facts be dismissed and the ld. CIT(A) ought to have adjudicated the appeals and grounds raised therein on merits. 7. The ld. Senior Counsel for the assessee, stated that the ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings the assessee again requested to withdraw the application u/s 264 of the Act and appear before the ld. CIT(A) for contesting the issues. It is like blowing hot and cold by the assessee and the ultimate intention of the assessee is to get the benefit either before the ld. CIT(A) or before the ld. CIT(E). Since the assessee has failed to get any relief before the ld. CIT(E), now, the assessee is pleading that the ld. CIT(A) erred in dismissing the appeals as withdrawn. Had the ld. CIT(E) granted relief to assessee, then assessee would have not pressed the instant appeals. He thus prayed that the impugned orders dismissing the assessee's appeals, may be confirmed. 9. We have heard rival contentions and perused the material placed before us. We observe that the assessee has been denied exemption u/s 11 of the Act for AYs 2013-14, 2014-15 and 2018-19 and aggrieved with the said action of the ld. AO, grounds of appeal challenging the validity of the assessment proceedings as well as the additions made, were raised before the ld. CIT(A). During the course of pendency of the appeal before the ld. CIT(A), the assessee suo-moto requested to withdraw the appeal because it wanted to op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66/Mum/2018; AY 2009-10, order dt. 16/01/2019, in both these cases the ld. CIT(A) dismissed the assessee's appeal in limine without dealing with the merits of the case and since this is also not the fact of the instant case before us, these two decisions are also not applicable as the facts are distinguishable. 11. Before proceeding ahead we would like to go through the provisions of Section 251 of the Act, which read as follows:- "Powers of the 63[***] 64[Joint Commissioner (Appeals) or the]65[Commissioner (Appeals)]. 66 251. (1) In disposing of an appeal, the 63[***]*65[Commissioner (Appeals)] shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or 67annul the assessment 68[***]; 69[(aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication 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). 14. We further notice that in the order u/s 264 of the Act, ld. CIT(E) has referred to the judgement of the Hon'ble Jurisdictional High Court in the case of Vikas Nagelia vs. CIT reported in [2022] 145 taxmann.com 317 (Cal.), wherein the Hon'ble Court held as under:- "10. With regard to the averments that no instruction was given by the appellant to withdraw the appeal to the earlier consultant etc., are of self-serving statement of the appellant of which we cannot take any cognizance. Nevertheless, we are convinced that the conduct of the appellant cannot be stated to be so bad to hold that he had slept over his rights. The appellant had been prosecuting the matter before a wrong forum. In any event, the appellant should not be left remediless and should not be non-suited even to avail the revisional remedy, more particularly when the appellant chose not to avail a statutory appeal before the first appellate authority against the assessment. Therefore, the only remedy available to the appellant is to file a revision ..... 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