9911796707
TMI Blog2025 (2) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has raised the following substantial questions of law for consideration:- i) Whether on the facts and in the circumstances of the case Tribunal though in the preliminary portion of the order observed of having perused the record and order under appeal but very importantly failed to appreciate and take into consideration extremely relevant issue that the CIT(A) had passed the appellate order in gross violation of the requirements contained in sections - 250 and 251 since it was but incumbent for the CIT(A) to decide the appeal on merit as law did not authorize the CIT(A) to dismiss the appeal for non-prosecution for which reason alone the said order was without jurisdiction and bad in law ? ii) Whether on the facts and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Thereafter, the appellant was not diligently filing the appeal before the Tribunal but belatedly filed the appeal and prayed for condonation of delay of 1288 days. Learned Tribunal by the impugned order dismissed the appeal on the point of limitation. Aggrieved by the same, the assessee has preferred the present appeal. 6. We have elaborately heard the learned Advocates for the parties. It is no doubt true that the appellant/assessee was not diligent in prosecuting the matter either before the first appellate authority or promptly filing an appeal before the learned Tribunal. However, the question which has arisen for consideration in this case is whether the first appellate authority could have dismissed the appeal on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the department would submit that the conduct of the appellant should be considered and the appellant having not been diligent enough to prosecute the appeal petition either before the CIT(A) or before the Tribunal cannot be allowed to say that the Tribunal ought not to have dismissed the appeal on the ground of limitation. Section 251 of the Act deals with the power of the Joint 9. Commissioner (Appeals) or the Commissioner (Appeals). Sub-section 1 states that in disposing of an appeal, the Commissioner (Appeals) shall have the following powers - (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; (bb) in an appeal against the order of assessment in respect of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 251 (1) (c), the Commissioner (Appeals) can pass such orders as he thinks fit. Clause (c), in our opinion, should be read in conjunction with clause (a) and (b). This is so because the power vested with the Commissioner (Appeals) is coterminus with that of the power of the assessing officer. In Premkumar Arjundas Luthra (HUF) the Division Bench of the High Court of Bombay while considering a similar issue pointed out that the powers of CIT(A) are coterminus with that of the assessing officer i.e. he can do all that assessing officer could do. Therefore, just as it is not opened to the assessing officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons the appellant will avoid proceedings. However, in the instant case there is no such record to show that the appellant had deliberately lodged appeal belatedly before the Tribunal or that deliberately they did not appear before the CIT(A) for certain other collateral purposes. 13. Therefore, apart from that, since the matter involves the tax liability, and the appellant's remedy before the CIT(A) is a very valuable remedy since the Commissioner's powers are coterminus with that powers of the assessing officer, we deem it appropriate to restore the appeal to the CIT(A) for being decided on merits subject to the condition that the appellant should not seek for any adjournment and should cooperate in the disposal of the appeal by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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