2016 (5) TMI 290

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....e following question of law for our consideration : "Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the CIT(A) does not have the power under the Income Tax Act, 1961 to dismiss the appeal of the assessee for non-prosecution of the appeal?" 3. For the Assessment year 2006-07, the Assessing Officer by order dated 8th March, 2010 imposed a penalty upon the respondent-assessee under Section 271(1)(c) of the Act. 4. Being aggrieved, the respondent-assessee challenged the order dated 8th March, 2010 before the Commissioner of Income Tax (Appeals) (CIT(A)). At the hearing before the CIT(A), as none appeared for hearing in support the CIT(A) dismissed the respondent-as....

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....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) ........ (7) ........ "Powers of the Commissioner (Appeals) "Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers - (a) - in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment. (aa) ....... (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty." (c) ........ (2) The Commissioner (Appeals) shall not enh....

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....he 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set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.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 coterminus 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 ....