AMAR JUGOLKISHOR TIWADI,SOLAPUR vs. INCOME TAX OFFICER, CENTRAL CIRCLE 1, SOLAPUR

Ld. Authorized representative filed a paper book and submitted that Ld. CIT(A) has not adjudicated the grounds of appeals on merits. Ld. CIT(A) merely dismissed on non compliance. Ld. AR submitted that ld. CIT(A) may be directed to provide one more opportunity to the assessee.

Ld. DR relied on the order of AO and Ld. CIT(A). Amar Jugalkishore Tiwadi.

We have heard both the parties, perused the records. Both the appeals were heard together. It is observed that for both years ld. CIT(A) has dismissed the appeal of the assessee for non compliance without discussing merits of the grounds of appeal. As per Sec. 250 of the Act it is mandatory for Ld. CIT(A) for adjudicate appeal on merits. In this regard reliance is placed upon the decision of 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) 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set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.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. Amar Jugalkishore Tiwadi. 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.

1 Thus, Hon’ble Bombay High Court has categorically held that CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non-prosecution.

Respectfully following the decision of Hon’ble Bombay High Court, we set aside the order of Ld. CIT(A) to ld. CIT(A) for denovo adjudication. Ld. CIT(A) shall provide opportunity of hearing to the assessee. Assessee shall file all necessary details before ld. CIT(A).

In the result both the appeals of the assessee are allowed for statistical purposes.

Since, we have remitted both the appeals of the assessee to the file of ld. CIT(A) for denovo adjudication, the stay applications filed by the assessee become infructuous and hence dismissed.

""थ" / The Respondent.

The Pr. CIT concerned. 4. िवभागीय "ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब"च, पुणे / DR, ITAT, “SMC” Bench, Pune. 5. गाड" फ़ाइल / Guard File. आदेशानुसार / BY ORDER,