2012 (8) TMI 278 - HC - Income Tax

Dismissal of the appeal - relying upon the letter of the AR seeking permission to withdraw on the ground that the matter is pending before the Settlement Commission - Held that - No dispute on the fact that the assessee had filed an appeal on time, challenging the merits of the assessment and if the Commissioner (Appeals) has to go into the merits of the assessment, certainly, all the enumerated powers would have been available to an appellate authority to consider the merits of the appeal, including those matters which were not specifically raised before the Commissioner. The assessee herein sought for withdrawal of the appeal to go before the Settlement Commission, which dismissed the petition on the ground that there was no appeal pending a mandatory requirement as on the date of taking up a required application. Thus, on the question as to whether there could be withdrawal of the appeal by the assessee, the decision of the Apex Court reported in CIT v. Rai Bahadur Hardutroy Motilal Chamaria 1967 (4) TMI 8 - SUPREME COURT gives the answer that once the machinery is set in motion, the assessee cannot withdraw the appeal - after filing an appeal, the tax payer could not, at his option or at his discretion, withdraw an appeal to the prejudice of the Revenue - if a contingency of the nature contemplated u/s 245D(6) is to arise, then the power of the Appellate Authority under Section 251 to enhance the assessment thus available, the question of considering the withdrawal with or without objection from the Revenue does not arise - no hesitation in setting aside the order of the Tribunal and restoring the matter back to the file of the Commissioner of Income Tax (Appeals) for considering the assessment on merits and pass orders thereon in accordance with law.

Issues Involved:
1. Sustainability of the First Appellate Authority's order dismissing the appeal as infructuous.
2. Obligation of the Income Tax Appellate Tribunal to consider the appeal on merits under Section 246A and Section 251 of the Income Tax Act.
3. Validity of the First Appellate Authority's order due to alleged non-application of mind.

Detailed Analysis:

1. Sustainability of the First Appellate Authority's Order:
The primary issue was whether the First Appellate Authority's order dated 30.03.2000 dismissing the appeal as infructuous, based on the authorized representative's letter seeking withdrawal, was sustainable in law. The court noted that the Settlement Commission had dismissed the petition for settlement for the assessment years 1992-93, 1993-94, and 1996-97, as there was no pending appeal - a mandatory requirement. The court cited the Apex Court's decision in [1967] 66 ITR 443 (Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal Chamaria), emphasizing that once an appeal is filed, the assessee cannot withdraw it. The court concluded that the First Appellate Authority's order was not sustainable as it contravened the legal principle that an appeal, once filed, cannot be withdrawn to the prejudice of the Revenue.

2. Obligation of the Income Tax Appellate Tribunal:
The court examined whether the Tribunal was bound to consider the appeal on merits under Section 246A and Section 251 of the Income Tax Act. It was argued that the Tribunal should have considered the appeal on merits rather than dismissing it based on the withdrawal request. The court referred to Section 251, which grants the Commissioner of Appeals the power to confirm, reduce, enhance, or annul the assessment and even consider matters not raised by the assessee. The court held that the Tribunal erred in not considering the appeal on merits, as the appellate authority has a duty to ensure the correct assessment of income, which cannot be circumvented by withdrawal of the appeal.

3. Validity of the First Appellate Authority's Order:
The court addressed the issue of non-application of mind by the First Appellate Authority in dismissing the appeal as infructuous. It was argued that the First Appellate Authority failed to consider the implications of the withdrawal and the pending proceedings before the Settlement Commission. The court noted that the appellate authority's powers are extensive and include the ability to enhance the assessment. The court found that the First Appellate Authority's order was vitiated by non-application of mind, as it did not consider the broader implications of the withdrawal and the legal principles governing the appellate process.

Conclusion:
The court concluded that the Tribunal's reasoning that the withdrawal order was justifiable because the Revenue did not object was incorrect. The court emphasized that the appellate process, once initiated, must be carried out to its logical conclusion, ensuring the correct assessment of income. The court set aside the Tribunal's order and restored the matter to the file of the Commissioner of Income Tax (Appeals) for a decision on merits, providing the assessee with an opportunity to be heard. The appeals were allowed, and no costs were awarded.

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