M/S. UNIFUES LIFE SCIENCES LTD.,NAGPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, NAGPUR

ORDER

PER DR. DIPAK P. RIPOTE, AM:

M/s.Unijules Life Sciences Ltd., [A] “1) The Assessment u/s 153A r.w.s 143(3) of Income Tax Act, 1961 (“Act”) is illegal, invalid and deserves to quashed in the interest of justice.

2) On the facts and circumstances of the case and in law, in view of order dated 08.03.2019 passed by Hon’ble NCLT declaring moratorium u/s 14 of Insolvency and Bankruptcy Code, 2016 (“I&B Code”) the order passed by Hon’ble CIT(A) dated 08.11.2021 is bad in law and liable to be quashed in the interest of justice.

3) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs.22,76,64,398 treating the purchases made by the Appellant to that extent as bogus purchases which is illegal and the addition so made deserves to be deleted as per law.

4) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs.21,95,000 as cash payments not recorded in the books of accounts which is illegal, and which deserves to be deleted as per law.

5) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs.2,00,000 allegedly representing unaccounted cash payments which is illegal, and which deserves to be deleted as per law.

6) On the facts and circumstances of the case and in law, the AO grossly erred in making and the CIT(A) grossly erred in confirming addition of Rs.1,55,59,979 representing disallowance of depreciation on purchase of assets allegedly held bogus which is illegal, and which deserves to be deleted as per law.

7) On the facts and circumstances of the case and in law, the M/s.Unijules Life Sciences Ltd., [A] assessment being a case of unabated assessment, the additions to the extent not emanated from incriminating material found during the course of search are illegal and which deserves to be deleted as per law.

8) On the facts and circumstances of the case and in law, the AO grossly erred in not accepting the loss as declared in the return filed under section 153A. Under any case the Appellant deserves to be assessed at the correct income as determined under the provisions of Income Tax Act, 1961.

9) The Appellant craves leave to add, amend, alter, vary and / or withdraw the above ground of appeal with the kind permission of the Hon'ble Tribunal.”

Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC]. Findings & Analysis : 4. We have heard ld.Departmental Representative for the Revenue and perused the records. On perusal of the order of the ld.CIT(A) it is observed that ld.CIT(A) has dismissed the appeal without discussing merits, as assessee failed to file submission in response to notices issued by ld.CIT(A).The ld.CIT(A) has decided this case as under :

M/s.Unijules Life Sciences Ltd., [A] 4.1 In this case, ld.CIT(A) has dismissed the appeal of the assessee for non-prosecution. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits.

4.2 The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF)(Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, 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 support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A)

M/s.Unijules Life Sciences Ltd., [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 consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.

Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open 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 assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires 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.” Unquote.

M/s.Unijules Life Sciences Ltd., [A] does not have any power to dismiss appeal for non- prosecution.

Order pronounced in the open Court on 28th February, 2024.