DAYARAM AGRAWAL, RAIPUR,RAIPUR vs. INCOME TAX OFFICER-3(1), RAIPUR, RAIPUR

आदेश / ORDER

PER RAVISH SOOD, JM

“1. On the facts and in circumstances of the case, the Learned CIT(A) had erred in passing order without calling for the documents submitted with the A.O in the re-assessment proceeding. Therefore, order passed without verifying the documents available with the department is unjustified, unwarranted and uncalled for.

2. On the facts and in the circumstances of the case, the Ld. AO has erred in making addition of Rs.29,76,000/- being unexplained investment u/s. 69 by treating the assessee as beneficiary. The addition made by the A.O and treating the assessee as beneficiary is unjustified, unwarranted and uncalled for.

3 Dayaram Agrawal Vs. ITO-3(1), Raipur benami account i.e. in the name of Dinesh Kumar Jain A/c. No.01522000016673 with HDFC Bank, Devendra Nagar, Raipur.

3. Assessment was, thereafter, framed by the A.O vide his order passed u/s.147 r.w.s. 143(3) of the Act dated 27.12.2016, wherein after making an addition of Rs.29.76 lacs the income of the assessee was determined at Rs.32,62,270/-.

“2. Aggrieved with the order issued by the A.O, the appellant had filed present appeal on 12.01.2017. In the course of appellate proceedings, it is seen that the appellant was issued and served various notices u/s 250 of the Act from this office to present his contentions and any supporting documents. The said notices were issued right from 2020 through till 2022 and all of them remain un-complied with. The appellant vide his submission dt.03.10.2022 has requested for adjournment

4 Dayaram Agrawal Vs. ITO-3(1), Raipur for 15 days but after that despite issuing another notice u/s. 250 of the Act whereby the date of hearing was accorded to the appellant for 28.10.2022 no reply was received. Further, the National Faceless Appeal Centre (NFAC) also in November, 2022 enabled communication window to facilitate filing of submissions by the appellant but to no avail.

3. In view of the above, it is clear that the appellant is not interested in prosecuting the present appeal because there has been no response as yet. In view of the above, the appeal stands dismissed. Thus, the appeal filed by the appellant stands dismissed.”

As observed hereinabove, the CIT(Appeals) had disposed off the appeal for non-prosecution and had failed to apply his mind to the issue which did arise from the impugned order and was assailed by the assessee before him. I am unable to persuade myself to accept the manner in which the appeal of the assessee has been disposed off by the CIT(Appeals). In my considered view, once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merit and it is not open for him to summarily dismiss the appeal on account of non-prosecution of the same by the assessee. In fact, a perusal of Sec.251(1)(a) and (b), as well as the “Explanation” to Sec.251(2) of the Act reveals that the CIT(A) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per mandate of law the CIT(Appeals) is not vested with any power to summarily dismiss the appeal for non-prosecution. The aforesaid view is fortified by the 5 Dayaram Agrawal Vs. ITO-3(1), Raipur judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Premkumar Arjundas (HUF) (2017) 297 CTR 614 (Bom). In the aforementioned case the Hon’ble jurisdictional High Court had observed as under:

"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 AO to make further inquiry and report the result of the same to him as found in Sec. 250 of the Act. Further, Sec. 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. Sec. 251(1)(a) and (h) 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-s. (2) of s. 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 s. 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 w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO 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 s. 251(1)(a) and (b) and Explanation to Sec. 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.”

6 Dayaram Agrawal Vs. ITO-3(1), Raipur

raised by the assessee are disposed off in terms of the aforesaid observations.

9. In the result, the appeal filed by the assessee is allowed for statistical purposes in terms of the aforesaid observations.