9911796707
TMI Blog2021 (5) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income on 30/09/2014 admitting total income Rs. 1,66,52,590/- and the assessment was completed on total income of Rs. 3,93,89,250/-. 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 filed the present appeal before the under signed. 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 different dates which were not make use of by the appellant. In response to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints 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 decision on each such points which arose for determination. Thus, the Ld. CIT(A) was duty bound to dispose of the appeal on merits. Moreover, the perusal of Section 251(1)(a) and (b) of I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 v. Kanpur Coal Syndicate [1964] 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 that Ld. CIT(A) has no power to dismiss appeal in limine for non-prosecution of appeal by the assessee. We draw support from order of Hon'ble Bombay High Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen 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 assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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. Commissioner has confirmed the order of the AO for non-prosecution without considering the merits. Therefore, in the interest of justice, we consider it is appropriate to remand the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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