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TMI Blog2024 (7) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A) as per section 251 of the Act whereby he can confirm, reduce, enhance or annul the assessment while deciding the appeal u/s. 246A of the Act filed by the assessee which are within the purview of section 251(1)(a) of the Act. The ld. CIT(A) had also relied on the decision of Premkumar Arjundas Luthra [ 2016 (5) TMI 290 - BOMBAY HIGH COURT] wherein it was held that the power of allowing withdrawal of appeal is not within the provision of section 251(1)(a) of the Act and has further held that the ld. CIT(A) has to decide the issue on the merits of the appeal. CIT(A) has further stated that inspite of the fact that the assessee has filed an application seeking withdrawal of appeal, the appeal cannot be dismissed in limine without gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the Tribunal has quashed the section 263 order and that the ld. CIT(A) has erred in not deciding the appeal on the merits of the case. 4. Briefly stated the assessee company is a resident of Singapore which invests in Indian capital market registered with Security and Exchange Board of India (SEBI) as a Foreign Portfolio Investor (FPI). The assessee had filed its return of income on 29.11.2016, declaring total income at Rs. 62,91,62,077/- after exempting the dividend earned by it. The assessee had claimed net short term capital loss (STCL) and long term capital loss (LTCL for short) had carried forward the same u/s. 74 of the Act. The assessee has also shown the short term capital gain (STCG for short) and long term capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s. 263 of the Act on the ground that as the assessment was a limited scrutiny on the issue of examining outward foreign remittance, the ld. CIT had no jurisdiction to invoke revisionary powers on issues which were not subject matter of limited scrutiny. Subsequently, the ld. CIT(A) in his order dated 19.01.2024 had dismissed the appeal filed by the assessee as infructuous for the reason that as the Tribunal had set aside the revisionary order, the consequential assessment order u/s. 143(3) r.w.s. 263 of the Act herein the impugned order, does not survive in the eyes of law. 7. The Revenue is in appeal before us, challenging the order of the ld. CIT(A) for dismissing the appeal as infructuous. 8. When the appeal came up for hearing toda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal u/s. 246A of the Act filed by the assessee which are within the purview of section 251(1)(a) of the Act. The ld. CIT(A) had also relied on the decision of the Hon'ble Jurisdictional High Court in the case of Premkumar Arjundas Luthra (supra) which was relied upon by the ld. DR and also the decision Hon ble Madras High Court in the case of Loganathan v/s ITO, [2013] 350 ITR 373 (Mad.) and also the Tribunals decision in the case of M/s. Deekay Gears v/s. ACIT, Circle-29(1), Mumbai (ITA no.2366/Mum./2018), wherein it was held that the power of allowing withdrawal of appeal is not within the provision of section 251(1)(a) of the Act and has further held that the ld. CIT(A) has to decide the issue on the merits of the appeal. The ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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