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TMI Blog2022 (4) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was in error in dismissing the appeal in limine for non-prosecution of appeal by the assessee. We draw support from order of CIT vs. Premkumar Arjundas Luthra (HUF) [ 2016 (5) TMI 290 - BOMBAY HIGH COURT] for the proposition that Ld. CIT(A) is required to apply her mind to all issues which arise from impugned order before her whether or not same had been raised by appellant before her; and further, that CIT(A) is obliged to dispose of the appeal on merits. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 - Assessee s appeal is partly allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... un-served with the postal remarks "Left". Notice of hearing fixed on 06.04.2022 was served with the help of Revenue Authorities. Vide letter dated 28.02.2022 of Jt. Commissioner of Income Tax (OSD); it has been informed that the notice of hearing fixed on 06.04.2022 in ITAT was served on 25.02.2022. The relevant portion of the aforesaid letter F. No. DCIT/CC-04 Misc/2021-22/630 dated 28.02.2022 is reproduced as under: "To, Assistant Registrar, Income Tax Appellate Tribunal, 10th & 11th Floor, Loknayak Bhawan, Khan Market, New Delhi-110003. Sir/Madam, Subject: Notice to the parties of the date fixed for the hearing of an appeal under Income-tax Act, 1961 in the case Corporate International Financial Service Ltd. - reg. Kindly refer to the above mentioned subject. 2. In this regard your office is informed that this office has in receipt of notice dated 07.02.2022 for DASTI service to the Corporate International Financial Service Ltd for the hearing of an appeal ITA 2147/DEL/2017 as it has not been served at address D-06/6032, Vasant Kunj, Delhi by your office. Accordingly, this office has deputed an official on 14.02.2022 for service of this notice on the said addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son or by a representative. (3) The Commissioner (Appeals) shall have the power to adjourn the hearing of the appeal from time to time. (4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals). (5) The Commissioner (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Commissioner (Appeals) is satisfied that the omission of that ground from the form of appeal was not willful or unreasonable. (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. [(6A) In every appeal, the Commissioner (Appeals), where it is possible, may hear and decide such appeal within a period of one year from the end of the financial year in which such appeal is filed before him under sub-section (1) of section 246A (7) On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act provides that while disposing of an appeal against Assessment Order, Commissioner (Appeals) shall have the power to confirm, reduce, enhance or annul the assessment. For this provisions of law to take effect, the Ld. CIT(A) was requested to ensure due application of mind, instead of dismissing the appeal in limine. In view of the foregoing, we are of the view that the Ld. CIT(A) erred in dismissing the appeal in limine for non-prosecution of appeal and that she was required to dispose of the appeal on merits. (C.1.2) Moreover, once the Assessee files an appeal U/s 246A of I.T. Act, the Assessee 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, the Ld. CIT(A) in this case, can halt this machinery by ignoring the procedure in appeal prescribed U/s 250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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; it is amply clear that Ld. CIT(A) was in error in dismissing the 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 CIT vs. Premkumar Arjundas Luthra (HUF) [2016] 240 taxman 133 for the proposition that Ld. CIT(A) is required to apply her mind to all issues which arise from impugned order before her whether or not same had been raised by appellant before her; and further, that CIT(A) is obliged to dispose of the 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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