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TMI Blog2019 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 of I.T. Act, for fresh disposal of appeal filed by the Assessee before the Ld. CIT(A) against the aforesaid Assessment Order dated 28.03.2013. - ITA No:- 3098/Del/2016 - - - Dated:- 6-2-2019 - SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER For The Assessee : Shri Shailesh Gupta, CA For The Revenue : Shri S.S. Rana, CIT(DR) ORDER PER ANADEE NATH MISSHRA, AM This appeal by Assessee is filed against the order of the Learned Commissioner of Income Tax (Appeals)-27, New Delhi, [ Ld. CIT(A) for short], dated 31.03.2016, for Assessment Year 2011-12, on the following grounds: 1. That the leaned Commissioner of Income Tax (Appeals) has grossly erred in law and on facts in passing the order in utter disregard of the statutory provisions contained under section 250(6) of the Act by dismissing the appeal of the appellant ex parte, violating the principles of natural justice. 2. That the learned Commissioner of Income Tax (Appeals) has overlooked the provisions of Section 250(6) of the Act, as the order passed by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A). However, the assessee did not comply with hearing notices issued by the Ld. CIT(A). As the assessee did not appear before the Ld. CIT(A), she concluded that no useful purpose would be served by keeping the appeal proceedings pending indefinitely. She presumed that the Assessee has nothing to appeal against the additions made by the AO and she dismissed the Assessee s appeal with the following observations in her aforesaid impugned order dated 31/03/2016: 4.1 In view of the facts stated above, it is observed that the assessee was given seven opportunities (listed above) to represent her case before the appellant authority but nobody attended the proceedings nor filed adjournment application. The notices were sent by Speed Post for which it is presumed that assessee must have received them within 3 days. But she never filed any written submission nor application for adjournment. In view of the indifferent approach, I find that no useful purpose would be served by keeping the appeal proceedings pending indefinitely. Therefore, it is presumed that the assessee has nothing to appeal against the additions made by the Assessing Officer. 4.2 Further, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. That the learned Deputy Commissioner of Income Tax has erred in making an addition of ₹ 12,00,00,000/ - on the basis of page 17 of Annexure A-7 alleged to have been found and seized from the residence disregarding the fact that aforesaid document was got written during the course of search under the duress and otherwise too, it would be evident from the contents of the said document that same could not have been written in the normal course of human conduct and is also vague and look and content of the document shows that it is against the human probability. 3.1 That the learned Deputy Commissioner of Income Tax has erred in failing to appreciate that statement recorded during the course of search on 14.09.2010 under duress and threat, was duly retracted immediately after the search on 20.09.2010, stating that the surrender made was under the threat and duress of investigation wing and was not voluntary, and amount as well as the name of the alleged farmers are figment of imagination of the investigation wing, and appellant has neither advanced any such sum for the purchase of paddy nor any-such farmer is known to exist in the knowledge of the appellant, as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y erred in failing to appreciate once the appellant has duly stated that page 17 of Annexure A- 7 was written during the course of search and was forced to write on such paper under duress, as such, before making the addition, burden was on the revenue to bring some evidence or material to corroborate the transaction recorded in the aforesaid paper, and in absence of any corroborative evidence or material, addition made is unsustainable in law and deserves to be deleted. 3.8 That the learned Deputy Commissioner of Income Tax has erred in failing to appreciate appellant was forced to surrender by the investigation wing, which is in complete defiance of the Instruction dated 10th March, 2003 vide No. F No. 286/2/2003/IT (Inv), issued by the CBDT, as such, reliance placed by the learned Deputy Commissioner of Income Tax on the aforesaid surrender by the appellant is erroneous and unsustainable in law. . 3.9 That the learned Deputy Commissioner of Income Tax has erred in failing to appreciate that appellant does not purchase paddy directly from the farmers but it purchases only from the mandi and brokers in Delhi, Punjab, Haryana and UP as such, addition made on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT(A). The Ld. CIT(DR) relied on the order of the Hon ble Gujarat High Court at Ahmedabad in the case of PR Commissioner of Income Tax-3 vs. Ashokji Chanduji Thakor in R/Tax Appeal No. 1160 of 2018 and R/Tax Appeal No. 1161 of 2018. He further submitted that the appellate order of the Ld. CIT(A) was decided on the basis of material available on record and therefore, should be upheld. (4) We have heard both sides patiently. We have perused all materials on our records carefully. We have considered the judicial precedents referred to in the records. We have also factored in the orders of the lower authorities, i.e. Assessment Order dated 28.03.2013 of the AO and the impugned appellate order dated 31.03.2016 of the Ld. CIT(A). On perusal of the observations of Ld. CIT(A) in her impugned order, which we have reproduced already in foregoing paragraph no. (3) of this order, we are of the view that the order of Ld. CIT(A) on merits of the additions made by the AO, has been passed in a summary manner, because it is not a speaking order on the various points (including the grounds of appeal as already reproduced in foregoing paragraph (3.1) of this order) that arose for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment; ( b) In an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; ( c) In any other case, he may pass such orders in the appeal as he thinks fit. ( 2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant. Se More (4.1) A perusal of the above provisions of law shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see sets in motion the machinery designed for disposal of the appeal under Sections 250 and 251 of I.T. Act. If the appeal filed by the assessee fulfils 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 of I.T. Act or powers of Commissioner (Appeals) prescribed U/s 251 of I.T Act. CIT(A). The first appellate authority cannot dismiss assessee s appeal on merits, in a summary manner, 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 Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that AAC has plenar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal on merits. In this case, it was held as under: 8 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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