RAMKRISHNA CINE EXHIBITORS,PUNE vs. PNE CIRCLE 2 PUNE, PUNE

आदेश / ORDER

PER INTURI RAMA RAO, AM:

The appellant is a firm engaged in the business of Construction. It filed the Return of Income for the A.Y. 2017-18 on 30.10.2017 disclosing total income of Rs.11,25,19,270/-. Subsequently, the return was revised declaring total income of Rs.8,17,47,990/-. The case was selected for Scrutiny through Computer Assisted Scrutiny Selection (CASS). Statutory notices u/s.143(2) and 142(1) were issued to the appellant. The appellant in response to show cause notice dated 23.11.2019 submitted certain details vide its letter dated 05.12.2019. Against the said return of income, the AO vide order dated 27.12.2019 passed u/s.143(3) completed the assessment at a total income of Rs.14,87,23,540/-. While doing so, the AO computed the total income of the appellant as under :

S.No. Particulars Amount Amount Rs. Rs. I Income from Business 64,78,857 Add. 1. Sale proceeds treated as 2,57,28,128 business income instead of LTCG as per para 4 2. Sundry creditors as per para 5 4,92,17,750 3. Increase in the cost of 1,63,82,146 9,13,28,024 construction as per para 6 Business Income 9,78,06,881 II Long Term Capital Gains as per 5,09,16,658 para 4 Total income 14,87,23,539 Rounded off to 14,87,23,540

The CIT(A)/NFAC had rightly dismissed the appeal. Therefore, no interference by this Tribunal is called for.

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 a ssessee 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. Infact the CIT(A) is obliged to dispose of the appeal on merits. Infact 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. Thus, the Hon’ble Bombay High Court has categorically held that CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non-prosecution. Considering the entirety of the facts and circumstances, we are of the considered opinion that it is a fit case for remand of the matter to the file of the CIT(A)/NFAC for de novo consideration in accordance with law after affording due opportunity of hearing to the assessee.

Order pronounced on this 19th day of August, 2024.