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2019 (2) TMI 1063 - AT - Income TaxPermitting withdrawal of the appeal - power of Commissioner (Appeals) - HELD THAT - While dismissing assessee s appeal in limine without deciding on merit, learned Commissioner (Appeals) has not exercised his power in consonance with the provisions of section 251(1)(a) of the Act. Accordingly, inclined to set aside the impugned order of the Commissioner (Appeals). Since, the issues raised in the said appeal have not been decided on merit restore all the issues raised in the present appeal to the learned Commissioner (Appeals) for de novo adjudication. Consequently, the appeal filed by the assessee before the learned Commissioner (Appeals) is restored back to its original position. It is open for the assessee to raise all such issues before the first appellate authority for contesting the assessment order passed by the Assessing Officer. Needless to mention, the learned Commissioner (Appeals) must afford reasonable opportunity of being heard to the assessee before deciding the appeal. With the aforesaid observations, the grounds raised are allowed for statistical purposes. - Appeal is allowed for statistical purposes.
Issues:
Delay in filing the appeal - Condonation of delay sought by the assessee - Reasons for delay due to health issues of a partner - Assessment year 2009-10 - Appeal challenging order dated 21st September 2017 by Commissioner (Appeals) - Dismissal of appeal as withdrawn by Commissioner (Appeals) - Legality of dismissing appeal without deciding on merits - Interpretation of section 251 of the Income Tax Act - Obligation of the first appellate authority to decide appeal on merits - Applicability of relevant case laws - Restoration of appeal for de novo adjudication. Analysis: The appeal before the Appellate Tribunal ITAT Mumbai involved a delay of 116 days in filing the appeal challenging the order dated 21st September 2017 by the Commissioner (Appeals) for the assessment year 2009-10. The delay was due to health issues faced by a partner of the assessee firm, leading to a petition for condonation of delay. The learned Authorised Representative argued for the condonation of delay based on the partner's health conditions, supported by medical certificates and legal precedents like the decision in Collector of Land Acquisition v/s Mst. Katiji & Ors., 167 ITR 471 (SC). The delay was deemed to be due to reasonable cause, and the appeal was admitted for adjudication on merit. Regarding the dismissal of the appeal as withdrawn by the Commissioner (Appeals), the assessee sought to contest the decision, stating that the withdrawal was due to the partner's illness and lack of understanding of the consequences. The learned Authorised Representative argued that the Commissioner (Appeals) was incompetent to dismiss the appeal without deciding it on merits, citing relevant case laws like CIT v/s Rai Bahadur Hardutroy Motilal Chamaria, [1967] 66 ITR 443 (SC) and M. Loganathan v/s ITO, [2013] 350 ITR 373 (Mad.). The Commissioner (Appeals) had dismissed the appeal without considering the merits, contrary to the obligations under section 251 of the Income Tax Act. The Tribunal analyzed the provisions of section 251 of the Act and the obligations of the first appellate authority to decide appeals on merits. Referring to the decisions in Premkumar Arjundas Luthra (HUF) and M. Loganathan, it was concluded that the Commissioner (Appeals) must decide the appeal on merits within the parameters of the Act. Therefore, the impugned order of the Commissioner (Appeals) was set aside, and the appeal was restored for de novo adjudication. The assessee was given the opportunity to contest the assessment order before the Commissioner (Appeals) with a directive to provide a reasonable opportunity for a hearing. The appeal was allowed for statistical purposes, emphasizing the importance of deciding appeals on their merits as per the statutory provisions.
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