SUSANTA MALLICK,KALIKAPUR vs. D.C.I.T., CIRCLE-11(1),, KOLKATA

PER UDAYAN DAS GUPTA, JUDICIAL MEMBER 1) This appeal is filed by the assessee against the order of the Ld CIT(A) NFAC dated 26/03/2025, passed u/s 250 of the Income tax Act 1961( henceforth referred to as the Act), which has emanated from the order of the AO ( AU/ITD) dated 18/03/2023, passed u/s 147/ 144B of the Act. 2) Condonation of delay: It is pointed out by the registry that the appeal is filed belatedly by sixty six days. The assessee has filed an application for condonation of delay on medical grounds ( along with an affidavit ) supported by a certificate issued by one Dr Siddhita Gupta, that the assessee was suffering from hamstring injury of both lower limbs and was advised bed rest from 25/05/2025 to 28/07/2025. Subsequently, upon recovery

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Susanta Mallick he contacted his lawyers and took necessary steps to file this appeal on 5th August, 2025 , belated by 66 ( sixty six ) days . The Ld AR prayed for condoning the delay and for admission of the appeal to be heard on merits.
The Ld DR has no objection. We are of the opinion that the delay in filing this appeal has been satisfactorily explained to have arisen on account of medical reasons and as such we condone the delay and admit the appeal for hearing on merits.
3) The assessee has taken only one ground of appeal in form 36
objecting that the Ld CIT(A) has erred on facts and in law for dismissing the appeal and confirming the assessment order without considering materials on record.
4) Brief facts of the case as emerging from records are that the assessee has filed return declaring total income at Rs. 18.31 lakhs on 30/01/2016, and has claimed exemption u/s 10(38) on LTCG
(long term capital gains) amounting to Rs. 68.64 lakhs, which upon enquiry by AO was found as bogus and fictitious and notice u/s 148 dated 29/07/2022 was issued (as per procedure ) , and reassessment proceedings were completed after considering all submissions of the assessee , by disallowing the claim of LTCG treating the same to be accommodation entries against commission paid to the entry providers.
The reassessment was completed on a total income of Rs.90.39 lakhs (including an addition of Rs. 68.64 lakhs on account of bogus claim of LTCG plus Rs.3.43 lakhs being the alleged commission @ 5%, paid to brokers ( entry providers ) .

5) The matter carried in appeal, has been dismissed by the Ld first appellate authority, in absence of any representation or any response to various notices issued by the Ld CIT ( A ) on at least three separate occasions ( as evident from para 7 .2 of the 3
Susanta Mallick appellate order ) , without adjudication of the grounds contained in form 35 on merits of the case.

6) Now the assessee is before the tribunal on the ground contained in the memorandum of appeal and during the course of hearing the Ld AR of the assessee referred to a short paper book containing copies of bills relating to purchase of shares made by the assessee , issued by one Anurodh Infra Pvt Ltd and referred to the copies of bank statements of the assessee with HDFC banks, and submitted that assessee has not been able to represent the matter before the Ld CIT(A) on merits and the assessee was also not aware of the fixation dates and he requested for an opportunity of proper hearing before the first appellate authority.

7) The Ld DR relied on the order of the Ld CIT (A) but has no objection if the matter is remanded back for fresh adjudication.

8) We find that in the instant case the assessee has not filed any submissions or any documentary evidences in support of the grounds of appeal and the Ld first appellate authority , has not adjudicated on all the grounds contained in form 35 on merits in absence of any proper documents available before him.

9) At this stage we also refer to the decision of the Hon’ble
Bombay High court in the case of The Commissioner of Income Tax
(Central) Nagpur
V
Premkumar Arjundas Luthra (HUF)
INCOME TAX APPEAL NO.2336 OF 2013, DATE : 25TH APRIL, 20
16 where the Hon’ble court has observed on section 250 of the Act, 61, as follows:
“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

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Susanta Mallick 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.”

10) As such following the observation of the Hon’ble High court and considering all factual aspects of the case, we remand the matter back to the Ld. first appellate authority for decision on merits on all the grounds contained in the memorandum of appeal, after considering all materials on record and the assessee is also directed to file all necessary documentary evidences and submission in support of his case and to fully cooperate in appellate proceedings.
11) The assessee will be allowed reasonable opportunity of being heard and notice of hearing to be issued as per provisions of section 282 of the Act 61 and also in email id stated in form 35. 12) In the result the appeal of the assessee is allowed for statistical purpose.

Order pronounced on 24.10.2025 (Rakesh Mishra) (Udayan Das Gupta)
Accountant Member Judicial Member
Dated: 24.10.2025
AK, Sr. P.S.

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Susanta Mallick

Copy of the order forwarded to:
1. Appellant
2. Respondent
3. Pr. CIT
4. CIT(A)

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By order