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Income Tax Appellate Tribunal, PUNE BENCHES “SMC” :: PUNE
Before: DR.DIPAK P. RIPOTE & SHRI VINAY BHAMORE
ORDER PER DR. DIPAK P. RIPOTE, AM: These two appeals filed by the assessee against the separate orders of ld.Commissioner of Income Tax(Appeals)[NFAC] for Assessment Year 2016-17 & 2018-19; dated 15.02.2024 and 04.07.2024 respectively, passed u/sec.250 of the Income tax Act, 1961. Since the issue involved is common, both these appeals were heard together and decided by the common order. We will take the A.Y.2016-17 as a lead case.
1.1 The Assessee for A.Y.2016-17 has raised the following grounds of appeal : “1) The orders of the lower authorities may please be set aside and the matter may please be restored back to AO/or CIT(A) for fresh adjudication as the assessee could not file submission due to circumstance beyond it's control. 2) The Id. CIT(A)-NFAC erred in dismissing the appeal in limine without deciding the assessee's substantive grounds on merits as contemplated u/s 250(6) of the Act requiring him to give points for determination followed by a detailed adjudication thereof. 3) The CIT (A)'s ex-parte order without discussing merits of the case is against the mandatory requirements of section 250(6) providing that appellate order shall state the points for determination, decision thereon and reasons for its decision. Hence the order of the CIT(A) may please be set aside and matter may please be restored back to AO/or CIT(A) fresh de novo adjudication as per law. 4) The Id. AO erred in disallowing Rs 21,39,376 expenditure on account of Building material and works, hence it may please be deleted. 5) The Id. AO erred in disallowing Rs 16,20,672 expenditure on account of professional fees, hence it may please be deleted. 6) The Id. AO erred in disallowing Rs 10,14,369 expenditure on account of office expenses, hence it may please be deleted. 7) The Id. AO erred in disallowing Rs 3,51,217 expenditure on account of Interest expenses, hence it may please be deleted. 8) The Appellant seeks leave to add, alter, amend or drop any of the grounds taken above.” Condonation of Delay :
2. We have perused the condonation petition of the assessee and are convinced that there was sufficient cause for delay. Accordingly, Delay is condoned.
2.1 The ld.Authorised Representative(ld.AR) for the Assessee submitted that assessee’s appeal was dismissed by the ld.CIT(A) without discussing each and every ground and merits of the case and merely dismissed for non-compliance. Hence, ld.AR requested for one more opportunity of being heard to the assessee.
Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC].
Findings and Analysis : 3. We have heard both the parties and perused the records. It is observed from the order of the ld.CIT(A)[NFAC] that the ld.CIT(A)[NFAC] did not decide the grounds of appeal on merit but merely upheld the addition made by the Assessing Officer as assessee has not filed any reply before the ld.CIT(A). The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits.
3.1 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.
3.2. 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.
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.
In the result, appeal of the assessee is allowed for statistical purpose.
for A.Y.2018-19 : 6. Since we have already discussed the issue the “lead case” at length and the facts of ITA No.2258/PUN/2024, therefore, our decision shall apply mutatis mutandis to this appeal also, accordingly, grounds of appeal raised by the assessee in are allowed for statistical purpose.
In the result, two appeals of the Assessee i.e.ITA Nos.2257 & 2258/PUN/2024 are allowed for statistical purpose. Order pronounced in the open Court on 16th December, 2024.