PAWAN KUMAR SINGHAL,GHAZIABAD vs. ACIT, CIRCLE- 2, GHAZIABAD

This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-I, [“Ld. CIT(A)”, for short], Noida – 201301, dated 28.09.2018 for Assessment Year 2015-16.

“ 1. That under the facts and circumstances Ld. CIT(A) erred in law on merits in deciding the appeal ex-parte only after issuing notice of hearing for 19.09.18, for which adjournment application stood filed and noted by the CIT(A), however neither adjournment application rejected, nor any further date given and also no communication informing the fate of the adjournment application communicated to appellant, thus, no proper and reasonable opportunity of hearing has been allowed by CIT(A).

2. That the Ld. CIT(A) further erred in not admitting the appeal by mentioning that the asstt. order, demand notice and challan for fee was no filed, although, impugned order and demand notice were duly uploaded and the details of challan and payment were feeded in item No. 16 of Form-35 in the absence of which, Form-35 could not had been uploaded. 2.1 That without prejudice, when appeal stand filed in time, without issuing a deficiency notice for want of assessment order, demand notice and copy of challan, the appeal cannot be dismissed as un-admitted.

3. That under the facts and circumstances Ld. CIT(A) erred in not adjudicating the appeal on merits. 4. That under the facts and circumstances of Ld. AO erred in law and on merits in not accepting the declared LTCG of Rs. 2,89,99,096/- on sale of shares of M/s Esteem Bio Organic Food Processing Ltd. and in not allowing the exemption claimed u/s.10 (38) and in making addition of Rs. 2,91,49,846/- u/s.68 for the total amt. of sale consideration received on sale of shares. 4.1 That the findings of AO are unsustainable for addition of Rs. 2,91,49,846/- in the absence of providing the copies of all materials used against the assessee and by not providing cross–examination of persons whose statements have been relied upon, thus no proper and reasonable opportunity of hearing has been allowed and principles of natural justice is grossly violated which makes the impugned asstt. unsustainable in law. 5. That there is no basis and material to justify the findings of AO for addition of Rs. 8,74,496/- u/s. 69C as alleged unexplained commission exp. @3% of LTCG. The Ld. AO also erred in calculating 3% on total sale proceeds against findings of 3% on LTCG amt. 6. The AO erred in law in charging tax on addition of RS. 2,91,49,846/- at the special rate u/s. 115BBE.”

(2) The Assessment Order U/s 143(3) of the Income Tax Act, 1961 (“I.T. Act” for short) was passed on 27/12/2017, in which the total income was assessed at Rs.3,27,56,502/- as under:

Total income returned: Rs. 27,59,160/-

1. That the Asstt. framed U/s. 143 (3) at an income of Rs.3,27,56,500/- against returned at Rs.27,59,160/- is unsustainable in law as well as on merits.

2. That the impugned asstt. is without jurisdiction, hence illegal and unsustainable in law. 3. That under the facts and circumstances the Ld, A.O. erred in law and on merits in not accepting the declared LTCG of Rs.2,89,99,096/- on sale of shares of M/s Esteem Bio Organic Food Processing Ltd. and in not allowing the exemption claimed u/s. 10 (38) and in making addition of Rs.2,91,49,846/- u/s.68 for the total amt. of sale consideration received on sale of shares. 4. That the findings of A.O. are unsustainable for addition of Rs.2,91,49,846/- in the absence of providing the copies of all materials used against the assessee and by not providing cross- examination of persons whose statements have been relied upon, thus no proper and reasonable opportunity of hearing has been allowed and principles of natural justice is grossly violated which makes the impugned asstt. unsustainable in law. 5. That there is no basis and material to justify the findings of A.O. for addition of Rs.8,74,496/- u/s.69C as alleged unexplained commission exp. @3% of LTCG. The Ld A.O. also erred in calculating 3% on total sale proceeds against findings of 3% on LTCG amt. 6. The A.O. erred in law in charging tax on addition of Rs.2,91,49,846/- at the special rate u/s. l 15BBE. 7. That the interest u/s.234A/B/C has been wrongly charged. In any case it is highly excessive.”

(3.1) The Ld.CIT(A) dismissed the Assessee’s appeal with the following observations in his aforesaid impugned order dated 28/09/2018:

The present appeal has been filed by the appellant against an assessment order dated 27.12.2017 passed by the Ld. AO u/s 143(3) of I.T. Act, 1961 on a total income of Rs. 1,38,84,900/- against the return of income not available from the record of this office as the appellant has not filed the impugned assessment order despite repeated opportunities allowed by this office. The said assessment order not placed on record of this office has been impugned in the present appeal and is being contested by the appellant on the grounds of jurisdiction as well as merit.

3. It is not understood what is the nexus between filing of statutory documents mandatory for admitting the appeal and preparation of paper book or other such details. The impugned assessment order was received by the appellant on 27.12.2017 and the subject appeal has been filed on 10.01.2018 and therefore, the appellant has more than 8 months to prepare whatever it considered to be necessary for its case. In any case no hearing has been held by this office and no detail has been called for. It is therefore clear that the appellant is raising infructuous grounds to avoid appearing before this office.

(3.2) On perusal of the order of the Ld.CIT(A), therefore, it is found that he has dismissed the assessee’s appeal by holding it non-maintainable on the grounds that the impugned assessment order was not placed on record by the assessee; and that demand notice and challan for payment of appeal fee in compliance of section 249 had not been placed on record by the assessee.

(3.3) Aggrieved by the order of the CIT(A), the Assessee is now in appeal before Income Tax Appellate Tribunal (“ITAT”, for short). During appellate proceedings in ITAT, the Ld. Authorized Representative (“AR”, for short) for assessee filed synopsis, relevant portion of which is as under:

G.N. 1 “APPEAL DECIDED EX-PARTE ON VERY FIRST DATE - 1st Notice issued for hearing on 19.09.18. - Adjournment application filed in dak on 19.09.18 on instructions of CIT(A), who discussed the same in Para-2 of CIT (A) order. (1) - No communication from CIT(A) rejecting the adjournment application

- The reasons mentioned in the adjournment application wrongly rejected vide Para- 3 of CIT(A) order. - CIT(A) has passed ex-parte order without giving any reasonable opportunity of hearing.

G.N.2 NON - ADMISSION OF APPEAL BY CIT(A) FOR NON COMPLIANCE OF SEC.249 - Sec.249 has been fully complied with. - Appeal e-filed in time. - CIT(A) held that provisions of Sec.249 not complied with vide Para-4 of CIT(A) order for not filing the asstt. order

- (5) The asstt. order was duly filed with e-filed appeal - Further all other documents namely details of challan, demand notice, challan, and other attachments were e-filed with appeal (2-6) - Details of challan also filled up in Form-35 without which appeal cannot be e-filed. (3) - Also, form-35 could not be uploaded without attachments. - Hence, the appeal was correctly filled and was liable to be admitted by CIT(A). - Further. Sec.249 nowhere provides that even alleged non filing of asstt. order, will make the appeal non admissible. Hence, the appeal not admitted for non compliance of Sec.249 is also contrary - - Covered by ITAT order in case of Akasnha Singhal wherein same CIT(A) vide similar order dismissed the appeal, which stood set aside by Hon’ble ITAT to CIT(A) vide order dtd. 23.04.2019.”

(4.) At the time of hearing before us, the Ld.AR for the assessee reiterated the submissions as per the aforesaid synopsis mentioned in foregoing paragraph (3.3.1) of this order. He also referred to the order of co-ordinate Bench of ITAT in the case of Akansha Singhal vs. DCIT in ITA No.- 820/Del/2019 order dated 23.04.2019, copy of which has been furnished on record. He drew our particular attention to the following portion of aforesaid order in the case of Akansha Singhal vs DCIT(Supra):-

granted to the assessee. Therefore, no proper opportunity of hearing of the appeal have been granted. He has further submitted that it is appeal against the quantum assessment order.

However, the Ld. CIT(A) has wrongly mentioned in the impugned order that impugned penalty order is not available on the website of the department. He has referred to electronic appeal filed with Ld. CIT(A), in which, details of the challan have been mentioned and in the annexures, copy of the demand along with order appealed, have been filed with the O/o. CIT(A). These facts clearly show that there was no fault attributable to the assessee in filing the relevant documents along with the appeal papers. The Ld. CIT(A) on the very first date of hearing of the appeal proceeded ex-parte without giving proper opportunity to the assessee to prepare the case. The request for adjournment in writing was made seeking only 20 days time. These facts clearly show that impugned order is wholly unjustified and is liable to be set aside. The Ld. CIT(A) did not give reasonable, sufficient opportunity of being heard to the assessee.

3.1. In view of the above, we set aside the impugned order and restore the appeal of assessee to the file of the Ld. CIT(A)-1, Noida, with a direction to re-decide the appeal of assessee on merits strictly as per Law, by giving reasonable, sufficient opportunity of being heard to the assessee.”

(4.1) At the time of hearing before us, the Learned AR of the assessee made a prayer for setting aside the order of the Ld.CIT(A) with the direction to Ld.CIT(A) to pass fresh order on admissibility and maintainability of the appeal; and also on merits in respect of grounds of appeal raised by the assessee in appeal before the Ld.CIT(A). The Ld. Departmental Representative (“DR”, for short) did not express any objection to this prayer of the assessee. The Ld. DR also did not dispute or controvert the facts claimed and submissions made from assessee’s side in the synopsis referred to in the foregoing paragraph (3.3.1) of this order.

(4.1.1) We have heard both sides patiently. We have also carefully perused the materials on record. The relevant provisions under I.T. Act regarding maintainability of appeal made to Commissioner (Appeals) and regarding procedure in appeal, and powers of the Commissioner [Appeals] are contained in Sections 249, 250 and 251 of I.T. Act, which are reproduced below for ready reference:

“249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of,— (i) where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is one hundred thousand rupees or less, two hundred fifty rupees; (ii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, five hundred rupees; (iii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one thousand rupees; (iv) where the subject matter of an appeal is not covered under clauses (i), (ii) and (iii), two hundred fifty rupees. (2) The appeal shall be presented within thirty days of the following date, that is to say,— (a) where the appeal is under section 248, the date of payment of the tax, or (b) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty: Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded : Provided further that where an application has been made under sub-section (1) of section 270AA, the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assessee, shall be excluded, or (c) in any other case, the date on which intimation of the order sought to be appealed against is served. (2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000. (3) The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,— (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.

251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers— (a) In appeal against an order of assessment, may confirm, reduce, enhance or annual the assessment (aa) In appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment; (b) In an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) In any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.—In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant.” Se More (4.1.2.) Ld.CIT(A) dismissed assessee’s appeal by holding that the assessee had not complied with section 249 of I.T.Act. However, perusal of foregoing paragraphs (3.3), (4) and (4.1) shows that the assessee denied these allegations in written submissions as per synopsis, as well as through oral submissions at the time of hearing; and further, that the facts claimed and submissions made in these written as well as oral submissions made on behalf of the assessee have not been neither disputed nor controverted by the Learned DR. Thus, the assessee’s claim that the assessment order, details of challan etc., were e-filed with the appeal; is neither disputed nor controverted by Revenue.

(4.2) Further, a perusal of the statutory provisions reproduced already in foregoing paragraph (4.1.1), shows that U/s 250(6) of I.T. Act the Ld. CIT(A) was obliged to dispose of the appeal in writing after stating the points for determination and to then pass an order on each of the points which arose for consideration; and the Ld. CIT(A) was further obliged to state the reasons for his decision on each such points which arose for determination. Thus, the Ld. CIT(A) was duty bound to dispose of the appeal on merits. Moreover, the perusal of Section 251(1)(a) and (b) of I.T. Act and the further perusal of Explanation to Section 251(2) of I.T. Act shows that the Ld. CIT(A) was required to apply his mind to all the issues which arose from the impugned order before him, whether or not these issues had been raised by the Assessee before him.

Also, Section 251(1)(a) of I.T. Act provides that while disposing of an appeal against Assessment Order, Commissioner (Appeals) shall have the power to confirm, reduce, enhance or annul the assessment. Similarly, the section 251(1) (b) provides that in disposing of an appeal against an order imposing a penalty, Commissioner (Appeals) may confirm or cancel such orders or vary it so as to either to enhance or to reduce the penalty. On cumulative consideration the provisions U/s 250(6) read with sections 250(4), 250(5), 251(1)(a), 251(1)(b) and Explanation of Section 251(2) of I.T. Act , we come to the conclusion that the Ld. CIT(A) is not empowered to dismiss the appeal for non-prosecution of appeal and is obliged to dispose of the appeal on merits. Once the Assessee files an appeal U/s 246A of I.T. Act, the Assessee sets in motion the machinery designed for disposal of the appeal under Sections 250 and 251 of I.T. Act. If the appeal filed by the assessee fulfils the requirements of maintainability and admissibility prescribed under Sections 246, 246A, 248 and 249 of I.T. Act; neither the Assessee can stop the further working of that machinery as a matter of right by withdrawing the appeal, or by not pressing the appeal, or by non-prosecution of the appeal; nor the first appellate authority, CIT(A) in this case, can halt this machinery by ignoring either the procedure in appeal prescribed U/s 250 of I.T. Act or powers of Commissioner (Appeals) prescribed U/s 251 of I.T Act.

CIT(A), the first appellate authority, cannot dismiss assessee’s appeal in limine for non- prosecution without deciding the appeal on merits through an order in writing, stating the points of determination in the appeal, the decision thereon and the reason for the decision. It is well-settled that powers of Ld. CIT(A) are co-terminus with powers of the Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that AAC has plenary powers in disposing off an appeal; that the scope of his power is co-terminus with that of the ITO, that he can do what the ITO can do and also direct him to do what he failed to do. In this context, useful reference may also be made to Apex Court’s decisions in the cases of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 and CIT vs. B.N.

Bhattachargee 118 ITR 461 (SC) for the proposition that an assessee having once filed an appeal, cannot withdraw it and even if the assessee refuses to appear at the hearing, the first appellate authority can proceed with the enquiry and if he finds that there has been an under-assessment, he can enhance the assessment. Just as, once the assessment proceedings are set in motion, it is not open to the Assessing Officer to not complete the Assessment Proceedings by allowing the Assessee to withdraw Return of Income; it is similarly, by analogy, not open for Ld. CIT(A) to not pass order on merits on account of non-prosecution of appeal by the Assessee or if the Assessee seeks to withdraw the appeal or if the assessee does not press the appeal. When the Commissioner (Appeals) dismisses the appeal of assessee for non-prosecution of appeal by the assessee; in effect, indirectly it leads to same results as withdrawal of appeal by assessee. When the assessee is not permitted to withdraw the appeal filed before the first appellate authority, the first appellate authority is duty bound to not allow a situation to arise, through dismissal of appeal for non-prosecution of appeal before the first appellate authority; in which, in effect, indirectly the same results are obtained as arise from withdrawal of appeal by the assessee.

What cannot be permitted in law to be done directly, cannot be permitted to be done indirectly either, as is well settled. In view of the foregoing discussion; and on careful perusal of Section 250(6) r.w.s. 250(4), 250(5), 251(1)(a), 251(1)(b) and Explanation to Section 251(2) of I.T. Act; it is amply clear that Ld. CIT(A) has no power to dismiss appeal in limine for non-prosecution of appeal by the assessee. We draw support from order of Hon’ble Bombay High Court in the case of CIT vs. Premkumar Arjundas Luthra (HUF) [2016] 240 taxman 133 for the propositions that Ld. CIT(A) is required to apply his mind to all issues which arise from impugned order before him whether or not same had been raised by appellant before him; and that CIT(A) is obliged to dispose of the appeal on merits. In this case, it was held as under:

“8…… 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 co-terminus 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.”

(5) As already noted in foregoing paragraph (4.1) of this order, the Ld.DR did not express any objection to the prayer made on behalf of the assessee for setting aside the order of the Ld. CIT(A) with a direction to Ld.CIT(A) to pass fresh order. In view of the foregoing; we set aside the impugned order of the Ld.CIT(A) and restore the matter to the file of the Ld.CIT(A) with the direction to pass fresh order on admissibility and maintainability of the appeal filed by the assessee before the Ld.CIT(A), after giving Page 13 of 15 due consideration to e-filed documents and other attachments submitted by the assessee at the time of e-filing of appeal. We expressly hold that e-filed documents and other attachments, as well as other information submitted by the assessee at the time of e-filing of appeal before the Ld.CIT(A) must be treated as part of the record of the Ld.CIT(A) and must receive proper consideration at the end of the Ld. CIT(A). If the Ld.CIT(A) is satisfied about admissibility and maintainability of the appeal filed by the assessee before the Ld.CIT(A); then the Ld.CIT(A) is further directed to pass order on merits; stating the points for determination; the decision thereon, and reasons for the decision. Needless to say, the Ld.CIT(A) is required to adhere to principles of natural justice as well as to statutory provisions before he passes fresh order(s) as directed herein above; with particular reference to sections 249, 250 and 251 of the I.T.Act reproduced already in foregoing paragraph (4.1.1) of this order.

(6) For statistical purposes, the appeal of the assessee is partly allowed.

Order pronounced in the open court on 12th day of July, 2019.