TaxTMI 
TaxTMI 
2019 (1) TMI 297
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....f Rs. 12,52,000/- under section 69 of the I.T. Act on account of cash deposit in bank account made by ld. Assessing Officer. 3. That Ld. CIT(A) without appreciating the correct facts of the case and giving proper opportunity of being heard is not justified in law and facts and circumstances of the case in confirming the addition of Rs. 17,64,241/- made by ld. Assessing Officer by disallowing the interest on housing loan from income house property. 4. That ld. CIT(A) without appreciating the correct facts of the case and giving proper opportunity of being heard and raising any query during the course of hearing is not justified in law and facts and circumstances of the confirming the addition the addition of Rs. 17,00,000/- on account of alleged difference in the receipts as per 26AS and return of income. 5. Assessee has every right to make, add, delete, modify, or alter any grounds of appeal at the time of hearing." (2) The Assessment Order U/s 143(3) of the Income Tax Act, 1961 ("I.T. Act" for short) was passed on 31/12/2013, in which the following additions were made by the Assessing Officer (AO): * Income as declared by the assessee - Rs. 44,71,710 * Addition U/s 6....
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....n 69 of the I.T. Act on account of cash deposit in bank account. 4. That ld. Assessing Officer without appreciating the correct facts of the case and giving proper opportunity of being heard is not justified in law and facts ;and circumstances of the case in making the addition of Rs. 17,64,241/- by disallowing the interest on housing loan from income from house property. 5. That ld assessing officer without appreciating the correct facts of the case and giving proper opportunity of being heard and raising any query during the course of hearing is not justified in law and facts and circumstances of the case in making the addition of Rs. 17,00,000/- on account of alleged difference in the receipts as per 26AS and return of income. 6. Assessee has every right to make, add, delete, modify or alter any grounds of appeal at the time of hearing. (3.2) However, the Ld. CIT(A) in his aforesaid impugned order dated 15/02/2016, has not disposed off various grounds of appeal through a speaking order on merits. Instead, the Ld. CIT(A) has dismissed assessee's appeal on merits, in a summary manner through a non-speaking order, on merits. (4) The relevant provisions under I.T. Act re....
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....ts of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment; (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) In any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant." Se More (4.1) A perusal of the above provisions of law 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 t....
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.... with powers of the Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that AAC has plenary powers in disposing off an appeal; that the scope of his power is co-terminus with that of the ITO, that he can do what the ITO can do and also direct him to do what he failed to do. In this context, useful reference may also be made to Apex Court's decisions in the cases of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 and CIT vs. B.N. Bhattachargee 118 ITR 461 (SC) for the proposition that an assessee having once filed an appeal, cannot withdraw it and even if the assessee refuses to appear at the hearing, the first appellate authority can proceed with the enquiry and if he finds that there has been an under-assessment, he can enhance the assessment. Just as, once the assessment proceedings are set in motion, it is not open to the Assessing Officer to not complete the Assessment Proceedings by allowing the Assessee to withdraw Return of Income; it is similarly, by analogy, not open for Ld. CIT(A) to not pass order on merits on account of non-prosecution of appeal by the Assessee o....
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....y 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 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 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-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues whic....