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Income Tax Appellate Tribunal, NAGPUR BENCH : : NAGPUR
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
Assessee by Shri Nitesh Agrawal – CA Revenue by Shri Rajat Singhal – Sr.DR Date of hearing 22/09/2023 Date of pronouncement 28/09/2023 आदेश/ ORDER PER BENCH: This is an appeal filed by the assessee against the order of ld.CIT(Appeals)-[NFAC] under section 250 of the Income Tax Act, 1961 dated 29.07.2021 for A.Y.2011-12.
Findings and Analysis : 2. On perusal of the order of the ld.CIT(A)[NFAC] it is observed that ld.CIT(A) has dismissed the appeal without to 95/NAG/2021 (04 appeals) Murli Industries Ltd., [A] discussing merits. The paragraph 4 of the said order is reproduced here as under : “4. In light of the above details of non-compliance and non- pursuance of appeal, reference is made to the following judicial ruling of the Hon’ble Apex Court. In CIT vs. B.N. Bhattacharya (1977) 118 ITR 461 (SC), the Hon’ble Supreme Court while dealing with the issue of pursuing of appeal has stated that “preferring an appeal means more than formally filing it but effectively pursuing it”. The Hon’ble ITAT, Delhi, in CIT vs. Multiplan India Pvt. Ltd., as reported in 38 ITD 320 (Delhi), when faced with a similar situation of non- pursuing of appeal dismissed the appeal of Revenue. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the following maxin- "vigilantibus non dormientibus jura subveniunt". In view of the above, it is clear that the appellant is not interested in pursuing this appeal. Therefore, the appeal filed by the appellant is dismissed.”
The Hon’ble Bombay High Court in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay)has 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. to 95/NAG/2021 (04 appeals) Murli Industries Ltd., [A]
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 to 95/NAG/2021 (04 appeals) Murli Industries Ltd., [A] 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, 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. However, in this case ld.CIT(A) has dismissed appeal of the assessee without discussing merits of the case and only on one ground i.e. Non-prosecution.
5.1 Therefore, in the facts and circumstances of the case, we set-aside the order of the ld.CIT(A) to ld.CIT(A) for denovo adjudication after giving opportunity to the assessee. The assessee shall provide all the necessary document required by the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose. to 95/NAG/2021 (04 appeals) Murli Industries Ltd., [A]
In the result, appeal of the assessee is allowed for statistical purpose.
ITA Nos:93, 94 & 95/NAG/2021 : 7. The facts of are similar to the facts of ITA Nos.93, 94 & 95/NAG/2021, therefore, our decision in ITA No.92/NAG/2021 shall apply mutatis mutandis to these appeals also, accordingly, grounds of appeal raised by the assessee in the above three appeals are allowed for statistical purpose.
In the result, appeals of the assessee in 94 & 95/NAG/2021 are allowed for statistical purpose.
To sum up, four appeals of the assessee are allowed for statistical purpose.
Order pronounced in the open Court on 28th September, 2023.