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2019 (7) TMI 869 - AT - Income TaxDismissal of appeal for non-prosecution by CIT(A) - appeal held non-maintainable on the grounds that the impugned assessment order, demand notice and challan for payment of appeal fee in compliance of section 249 had not been placed on record - all the above documents were e-filed - power of CIT(A) - HELD THAT - We come to the conclusion that the CIT(A) is not empowered to dismiss the appeal for non-prosecution of appeal and is obliged to dispose of the appeal on merits. Once the Assessee files an appeal U/s 246A, the Assessee sets in motion the machinery designed for disposal of the appeal under Sections 250 and 251. If the appeal filed by the assessee fulfills the requirements of maintainability and admissibility prescribed under Sections 246, 246A, 248 and 249 of I.T. Act; neither the Assessee can stop the further working of that machinery as a matter of right by withdrawing the appeal, or by not pressing the appeal, or by non-prosecution of the appeal; nor the first appellate authority, CIT(A) in this case, can halt this machinery by ignoring either the procedure in appeal prescribed U/s 250 or powers of Commissioner (Appeals) prescribed U/s 251. CIT(A), the first appellate authority, cannot dismiss assessee s appeal in limine for non- prosecution without deciding the appeal on merits through an order in writing, stating the points of determination in the appeal, the decision thereon and the reason for the decision. It is well-settled that powers of Ld. CIT(A) are co-terminus with powers of the AO. DR did not express any objection to the prayer made on behalf of the assessee for setting aside the order of the Ld. CIT(A) with a direction to Ld.CIT(A) to pass fresh order. We expressly hold that e-filed documents and other attachments, as well as other information submitted by the assessee at the time of e-filing of appeal before the CIT(A) must be treated as part of the record of the Ld.CIT(A) and must receive proper consideration at the end of the CIT(A). If the Ld.CIT(A) is satisfied about admissibility and maintainability of the appeal filed by the assessee before the Ld.CIT(A); then the Ld.CIT(A) is further directed to pass order on merits; stating the points for determination; the decision thereon, and reasons for the decision. - For statistical purposes, the appeal of the assessee is partly allowed.
Issues Involved:
1. Ex-parte decision by CIT(A) without proper opportunity of hearing. 2. Non-admission of appeal by CIT(A) due to alleged non-compliance with Section 249. 3. Non-adjudication of appeal on merits by CIT(A). 4. Addition under Section 68 for non-acceptance of declared LTCG and denial of exemption under Section 10(38). 5. Addition under Section 69C for alleged unexplained commission expenses. 6. Charging tax at the special rate under Section 115BBE. Detailed Analysis: 1. Ex-parte Decision by CIT(A) Without Proper Opportunity of Hearing: The Assessee contended that the CIT(A) erred in deciding the appeal ex-parte after issuing a notice of hearing for 19.09.18. The Assessee had filed an adjournment application, which was neither rejected nor was any further date given, nor was any communication informing the fate of the adjournment application communicated to the appellant. The Tribunal found that the CIT(A) passed an ex-parte order without giving a reasonable opportunity of hearing, which was against the principles of natural justice. 2. Non-admission of Appeal by CIT(A) Due to Alleged Non-compliance with Section 249: The CIT(A) dismissed the appeal stating that the assessment order, demand notice, and challan for the fee were not filed. However, the Assessee argued that these documents were duly uploaded and the details were filled in Form-35. The Tribunal observed that the CIT(A) dismissed the appeal on the grounds that the impugned assessment order was not placed on record by the Assessee, which was contrary to the Assessee's claim that all necessary documents were e-filed. The Tribunal emphasized that the CIT(A) should have considered these e-filed documents before dismissing the appeal. 3. Non-adjudication of Appeal on Merits by CIT(A): The CIT(A) did not adjudicate the appeal on merits. The Tribunal noted that under Section 250(6) of the I.T. Act, the CIT(A) is obliged to dispose of the appeal in writing, stating the points for determination, the decision thereon, and the reasons for the decision. The Tribunal held that the CIT(A) is required to dispose of the appeal on merits and cannot dismiss it for non-prosecution without deciding the appeal on merits. 4. Addition Under Section 68 for Non-acceptance of Declared LTCG and Denial of Exemption Under Section 10(38): The Assessee declared LTCG on the sale of shares and claimed exemption under Section 10(38). The AO did not accept the declared LTCG and made an addition under Section 68 for the total amount of sale consideration received on the sale of shares. The Assessee argued that the AO's findings were unsustainable as no proper and reasonable opportunity of hearing was allowed, and the principles of natural justice were violated. The Tribunal directed the CIT(A) to adjudicate this issue on merits. 5. Addition Under Section 69C for Alleged Unexplained Commission Expenses: The AO made an addition under Section 69C for alleged unexplained commission expenses calculated at 3% of the LTCG amount. The Assessee contended that there was no basis and material to justify this addition. The Tribunal directed the CIT(A) to examine this issue on merits. 6. Charging Tax at the Special Rate Under Section 115BBE: The AO charged tax on the addition under Section 68 at the special rate under Section 115BBE. The Assessee argued that this was erroneous. The Tribunal directed the CIT(A) to look into this matter and decide on merits. Conclusion: The Tribunal set aside the order of the CIT(A) and restored the matter to the file of the CIT(A) with the direction to pass a fresh order on the admissibility and maintainability of the appeal, after giving due consideration to the e-filed documents. If the appeal is found admissible, the CIT(A) is directed to pass an order on merits, stating the points for determination, the decision thereon, and the reasons for the decision, adhering to the principles of natural justice and statutory provisions. The appeal of the Assessee is partly allowed for statistical purposes.
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