SPAN CONSTRUCTION,PUNE vs. I.T.O WRD-3(3), PUNE, PUNE

3. On the facts and in the circumstances of the case and in law learned AO erred in passing the order under section r.w.s. 144 dated 23.03.2022 on the basis of notice under section 148 dated 30.03.2021 which appellant has not received either on any or on portal therefore, such proceedings are not valid and consequently, need to be quashed.

4. On the facts and in the circumstances of the case and in law learned AO erred in making addition of Rs. 2,00,50,000 by alleging that assessee has deposited cash to Shri. Sachin Nahar nearly on the basis of statement recorded appellant contention that no such transaction in cash have been entered with Shri. Sachin Nahar and entire addition needed to be deleted. Your appellant prays for deletion of entire addition. Your appellant craves for to add, alter amend, modify, delete any or all grounds of appeal before or during the course of hearing in the interest of principle of natural justice.” Submission of Ld.AR :

2. Ld.AR submitted that due to disputes between partners, submission could not be filed before ld.CIT(A). Ld.AR requested that one more opportunity may kindly be provided for hearing before the ld.CIT(A). Ld.AR further submitted that ld.CIT(A) has not adjudicated the Legal Grounds raised by Assessee.

Submission of ld.DR : 3. Ld.DR for the Revenue relied on the order of Assessing Officer and ld.CIT(A).

Findings & Analysis : 4. We have studied the Form No.35 which is the Form for filing appeal before ld.CIT(Appeal). The assessee has raised following grounds of appeal before the ld.CIT(A) :

1. On the facts and in the circumstances of the case and in law learned AO erred in reopening the case for A.Y. 2017.18 under section 147 specially in view of the fact the information was received as result of search action in the case of Shri. Sachin Nagar and the correct action ought to have been initiated under section 153C of the IT Act, 1961 therefore the entire reassessment proceedings are Void-ab-initio and any consequential order passed deserves to be quashed.

2. On the facts and in the circumstances of the case and in law learned AO erred in passing the order under section r.w.s. 144 dated 23.03.2022 on the basis of notice under section 148 dated 30.03.2021 which appellant has not received either on any or on portal therefore, such proceedings are not valid and consequently, need to be quashed.

3. On the facts and in the circumstances of the case and in law learned AO erred in making addition of Rs.2,00,50,000 by alleging that assessee has deposited cash to Shri. Sachin Nahar nearly on the basis of statement recorded appellant contention that no such transaction in cash have been entered with Shri. SachiNahar and entire addition needed to be deleted.

Your appellant craves for to add, alter, amend, modify, delete all above or any grounds of appeal before or during the course of hearing in the interest of natural justice.” 4.1 The ld.CIT(A) has not adjudicated any of the grounds. Assessee had raised legal grounds which could have been adjudicated by obtaining necessary details from the Assessing Officer. However, ld.CIT(Appeal) merely dismissed the appeal without adjudicating any of the grounds 5. 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. 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.

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

5.2 In view of the above, in the interest of justice, we set-aside the order of the ld.CIT(A) to ld.CIT(A) for denovo adjudication.

Ld.CIT(A) shall provide opportunity to the assessee. Assessee shall file all the necessary documents before the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.