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TMI Blog2021 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... f income on 02/09/2015 admitting total loss of (-) Rs. 1,80,73,233/- and the assessment was completed on total loss of (-) Rs. 35,49,213/- and the AO made the addition of Rs. 72,62,010/- to the returned income. Against the order of the AO, the assessee went on appeal before the ld. Commissioner and the ld. Commissioner dismissed the appeal of the assessee for non-prosecution. The relevant part of the order of the ld. Commissioner is extracted herein below:- "3. Aggrieved by the order of the AO the appellant flied the present appeal before the undersigned. I have carefully considered the information available on record It is seen from the record that 'opportunities were given to the appellant through hearing notice u/s. 250 on differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi - Trib.) held after considering the decisions of the various High Courts and Hon'ble Supreme Court that the ld. Commissioner required to pass the order on merits stating the points for determination, decision thereon and reasons for decision. For the sake of clarity and convenience, we extract para 4.2 & 5 of the order which reads as under:- "4.2 Further, a perusal of the statutory provisions reproduced already in foregoing paragraph (4.1.1), shows that U/s 250(6) of I.T. Act the Ld. CIT(A) was obliged to dispose of the appeal in writing after stating the points for determination and to then pass an order on each of the points which arose for consideration; and the Ld. CIT(A) was further obliged to state the reasons for his decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 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 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame results as withdrawal of appeal by assessee. When the assessee is not permitted to withdraw the appeal filed before the first appellate authority, the first appellate authority is duty bound to not allow a situation to arise, through dismissal of appeal for non-prosecution of appeal before the first appellate authority; in which, in effect, indirectly the same results are obtained as arise from withdrawal of appeal by the assessee. What cannot be permitted in law to be done directly, cannot be permitted to be done indirectly either, as is well settled. In view of the foregoing discussion; and on careful perusal of Section 250(6) r.w.s. 250(4), 250(5), 251(1)(a), 251(1)(b) and Explanation to Section 251(2) of I.T. Act; it is amply clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 co-terminus 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. CIT(A) and must receive proper consideration at the end of the Ld. 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. Needless to say, the Ld. CIT(A) is required to adhere to principles of natural justice as well as to statutory provisions before he passes fresh order(s) as directed herein above; with particular reference to sections 249, 250 and 251 of the I.T. Act reproduced already in foregoing paragraph (4.1.1) of this order. 5. In the instant case, there is no dispute that the Ld. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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