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TMI Blog2024 (3) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety has been disposed off by the CIT(Appeals). Once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merit and it is not open for him to summarily dismiss the appeal on account of non-prosecution of the same by the assessee. A perusal of Sec.251(1)(a) and (b), as well as the Explanation to Sec.251(2) of the Act reveals that the CIT(Appeals) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per mandate of law the CIT(Appeals) is not vested with any power to summarily dismiss the appeal for non-prosecution. The aforesaid view is fortified by the judgment of Premkumar Arjundas Luthra (HUF) ( 2016 (5) TMI 290 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the appeal. 2. Succinctly stated, the assessee which is a cooperative society engaged in the business of purchase of agricultural implements, seeds, livestock or other articles intended for agriculture for the purpose of supplying to its members, had e-filed its return of income for A.Y. 2020-21 on 05.02.2021 declaring an income of Rs. Nil (after claiming deduction u/s. 80P of the Act). Subsequently, the case of the assessee society was selected for scrutiny assessment u/s. 143(2) of the Act. 3. Original assessment was, thereafter, framed by the A.O vide his order passed u/s. 143(3) r.w.s. 144B of the Act dated 02.08.2022, wherein after declining assessee's claim for deduction u/s. 80P of Rs. 28,32,939/-, the income of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal but effectively pursuing it. 4.1.2 The decision of the Hon'ble High Court of Mumbai in the case of M/s. Chemipol v/s. Union of India, Law Ministry, Aayakar Bhawan, Mumbai and The Commissioner of Central Excise, Mumbai(Central Excise Appeal No.62 of 2009) clearly states, that every court judicial body or authority, which has a duty to decide a matter between two parties, inherently possesses the power to dismiss the case in default. 4.1.3 For the sake of reference, the relevant extract of the judicial pronouncement rendered by the Hon'ble High Court of Mumbai quoting decision of Hon'ble Supreme Court in the case of Nandramdas Dwarkadas AIR 1958 MP 260, is reproduced below: Now the Act does not give any power of dismissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non-prosecution. 4.1.6 The Hon'ble ITAT Delhi (ITR No.2006/Del/2011 dtd. 19.12.2001) in the case of Whirlpool of India Ltd v. DCIT had dismissed appeal for nonattendance at hearings, inferring that assessee was not interested in prosecuting of appeal. Thereafter in another decision in the case of Chadha Finlease Ltd. V. ACIT(ITA No.3013/Del/2011 date of order 20.12.2011) the Hon'ble ITAT had dismissed the appeal for non-attendance at hearings. 4.1.7 In a decision in the case of CIT v. Gold Leaf Capital Corporation Ltd. On 02.09.2011 (ITA no.798 of 2009), the Hon'ble High Court of Delhi had held that a negligent assessee sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case, the order passed u/s.143(3) of the Act dated 02.08.2022 by the AO is upheld. 8. In the result, the appeal of the assessee is dismissed. 5. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal. 6. I have thoughtfully considered the order of the CIT(Appeals) and am unable to concur with the same. As observed hereinabove, the CIT(Appeals) had disposed off the appeal for non-prosecution and had failed to apply his mind to the issues which did arise from the impugned order and was assailed by the assessee before him. I am unable to persuade myself to accept the manner in which the appeal of the assessee society has been disposed off by the CIT(Appeals). In my considered view, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-s. (2) of s. 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 s. 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 w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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