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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI INTURI RAMA RAO & SHRI VINAY BHAMORE
This is an appeal filed by the assessee directed against the order of National Faceless Appeal Centre, Delhi dated 31.10.2023 for the assessment year 2012-13.
At the outset, there is a delay of 87 days in filing of the present appeal. The appellant had filed the petition for condonation explaining the reasons which led to delay in presenting the appeal before the Tribunal. We have gone through the contents of the condonation petition and we are satisfied that it is a fit case for condonation of delay. Therefore, we condone the delay of 87 days in filing the appeal and proceed to dispose of the case on merits.
Briefly, the facts of the case are that the appellant is a company engaged in the business of manufacturing of machinery and equipment. The Return of Income for the assessment year 2012-13 was filed on 30.09.2012 disclosing total income of Rs.90,83,739/-. Against the said return of income, the assessment was completed u/s.143(3) vide order dated 16.03.2015 determining total income at Rs.93,31,940/-. Thereafter, the AO vide the rectification order u/s.154 dated 30.03.2019 made disallowance of u/s.14A r.w.r 8D amounting to Rs.28,29,916/-, thus eventually assessed the total income of the appellant at Rs.1,21,61,856/-.
Being aggrieved by the above rectification order, an appeal was before the CIT(A)/NFAC, who vide impugned order dismissed the appeal of the assessee for non-prosecution.
Being aggrieved, the appellant is in appeal before this Tribunal in the present appeal.
Heard the rival submissions and perused the material on record. It is an admitted position that the CIT(A)/NFAC had dismissed the appeal of the appellant ex parte for non-prosecution.
Further, it is a trite law that the CIT(A)/NFAC should have dealt with the merits of the issue in appeal, even in the case of ex-parte order. From the perusal of paras 3.1 and 3.2 of the impugned order, it would reveal that the CIT(A)/NFAC had not gone into the merits of the issue in appeal, merely dismissed the appeal for non- prosecution, which is contrary to the settled position of law. Our view is fortified by the judgment of the Hon’ble Bombay High Court in the case of Pr.CIT(Central) Vs.Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay) wherein the Hon’ble High Court held 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. 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 had 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.
In the 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.
In the result, the appeal filed by the assessee stands partly allowed. Order pronounced on this 06th day of May, 2024.