NAVNEET KUMAR SANCHETI,BHOPAL vs. CIT(A), DELHI

Page 2 of 7 treated as speculative loss, and the expenditure claimed has been disallowed in assessment proceedings u/s 143(3) of the Act 61, resulting in a total income of Rs.47,54,860/- which has been subsequently rectified u/s 154 of the Act 61 to NIL total income.

4.The matter was carried in appeal before the Ld CIT ( A ) NFAC , on various grounds contained in the memorandum of appeal in Form 35 , challenging the disallowance of Rs. 4.24 crores. In absence of any response or representation to the various notices issued from the office of the first appellate authority, on five different dates of hearing , as evident from the appellate order , the appeal has been dismissed by the Ld CIT ( A ) , without adjudication on the grounds of appeal on merits .

5. Now the assessee is before the tribunal on the grounds contained in the memorandum of appeal. The Ld AR of the assessee, submitted that no notice of hearing of the appeal case has been received by the assessee from the office of the Ld CIT ( A ) NFAC, on the email id provided in form 35 and no notice of hearing has been received vide post either. Referring to the details contained in the appellate order in respect of the issue of notice on five different dates, he submitted that notice might have been uploaded in the department portal but the Page 3 of 7 through email id as mentioned in form 35.

6. The Ld DR , relied on the order of the Ld CIT ( A ) and argued that since an appeal is preferred by the assessee , it is an obligation on the part of the assessee and his AR to keep track of the appeal portal , till disposal of the above appeal.

We have considered the rival arguments and considered the materials on record and we find that the email id specially mentioned in row 17 of Form 35 is rarinwa@gmail.com , for issue of notices for hearing , but no notice of hearing has been issued through the given mail id, and none by post either. The Ld DR has also not been able to put forth any evidence regarding issue of notices through the given mail id mentioned in Form 35.

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In view of the above, it is essential that before any action is taken, a communication of the notice must be in terms of the provisions as enumerated herein above. The provisions do not mention of communication to be "presumed" by placing notice on the e-portal. A pragmatic view has to be adopted always in these circumstances. An individual or a Company is not expected to keep the e-portal of the Department open all the time so as to have knowledge of what the Department is supposed to be doing with regard to the submissions of forms etc.. The principles of natural justice are inherent in the income tax provisions and the same are required to be necessarily followed.

"............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 Page 5 of 7

Navneet Kumar Sancheti AY 2013-14, 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(l)(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 dear 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 CTT(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 dear from the Section 251(l)(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."

7.2 Respectfully following the law laid down by the Hon’ble courts and in the interest of justice we remand the matter back to the Ld CIT ( A ) to decide the appeal afresh on the merits of the case as per the grounds contained in the memorandum of appeal after allowing reasonable opportunity to the assessee to represent his case and the assessee is also directed to file all necessary documentary evidences and submissions in support of his appeal and to fully cooperate in the appellate proceedings.