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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Assessee against the order of Ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 dated 04.01.2024. The Assessee has raised the following grounds of appeal :
1. CIT(A) has erred in dismissing Appellant’s Appeal alleging ‘Unexplained Cash Deposit in the Bank Account' in Para 5.2. Appellant prays for allowing Assessee's Appeal cancelling addition made by Assessing Officer as issue before CIT[A] is Income assessed estimating Profit.
Shaik Ayub Shaikh Mahebub Qureshi [A]
CIT(A) has failed to observe that case selected was for limited scrutiny as to 'Heavy Cash Withdrawals'.
Appellant prays for cancellation of Assessing Officer’s Order which is invalid for passed without Jurisdiction, beyond the scope of limited scrutiny.
Without prejudice to other Grounds and without accepting, CIT(A] has erred in working out the additional Profit of Rs.74,77,137/- inspite of his finding when he observed that Purchases are Rs.5,66,03,195/- and Sales are Rs.5,83,07,534/-.
CIT(A) has erred in not examining the issues in Grounds before him and dismissing the Appeal.
Appellant prays for deletion of addition as CIT(AJ in applying GP Ratio declared by Assessee on Turnover of Rs.46,67,325/- to Turnover estimated by Assessing Officer of Rs.5,83,07,534/-.
Without prejudice to above Ground, CIT(A) is not just and fair in deciding the Appeal as to estimate of Turnover and Income.
Appellant prays for restoring the Appeal to the file of CIT(A] or Assessing Officer for fair estimate of Income considering the facts.
7. Appellant Prays for direction for consequential reduction in Interest charged u/s 234.
Appellant prays to add, alter, amend, take additional grounds, submit additional evidence, and/or withdraw the ground/s, during appellate Proceedings.”
Submission of ld.Authorised Representative(ld.AR) : 2. 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
Shaik Ayub Shaikh Mahebub Qureshi [A] 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 & Analysis : 4. 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 dismissed the appeal of the assessee for non- compliance. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits.
4.2 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
Shaik Ayub Shaikh Mahebub Qureshi [A] 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.
Shaik Ayub Shaikh Mahebub Qureshi [A]
5. 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.
6. In view of the above, the order of the ld.CIT(A)[NFAC] is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the assessee.
Accordingly, appeal of the assessee in is allowed for statistical purpose.
Order pronounced in the open Court on 24th June, 2024.