AI Drafter 
TaxTMI 
TaxTMI 
2019 (4) TMI 89
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....f being heard to the appellant. 3. That the learned Commissioner of Income Tax (Appeals) has ignored various judicial rulings, wherein it was held that section 250(6) makes it obligatory for the CIT(A) to pass a speaking order deciding the points raised in appeal, stating his reasons for the decision, as such. 4. That the learned Commissioner of Income Tax (Appeals) ought not to have decided the appeal of the appellant ex parte, as due appearance was caused by the counsel of assessee- appellant, however, no order sheet entries were made signed by her and as such, due compliance was made by the appellant. 5. That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in upholding the order of assessment at an income of Rs. 12,16,66,071/-, as against the returned income of Rs. 16,66,071/- in an order of assessment dated 28.03.2013 under section 143(3) /153A of the Act. 5.1 That in doing so, the learned Commissioner of Income Tax (Appeals) has failed to appreciate the fact that the addition so made by learned assessing officer is beyond the purview of the assessment so made under section 153A of the Act, as addit....
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....thinks fit". In the instant case there is enough ground of non appearance of the appellant to decide the matter ex-parte, the appeal is decided on the basis of material available on record. Hence, the action of the AO is upheld and the appeal is dismissed." (3.1) The Assessee filed appeal in Income Tax Appellate Tribunal ("ITAT", for short), against the impugned order dated 31/03/2016 of the Ld. CIT(A). We find from the perusal of record, that the following grounds of appeal were raised by the Assessee before the Ld. CIT(A). "1. That the learned Deputy Commissioner of Income Tax, Central Circle-09, New Delhi has erred both in law and on facts in determining the total income of the appellant at Rs. 12,16,66,071/- as against declared income of Rs. 16,66,071/- in an order of assessment under section 143(3)/153A of the Act dated 28.03.2013. 2. That the learned Deputy Commissioner of Income Tax has further erred in framing the assessment without providing to the assessee, a fair, proper and meaningful opportunity of being heard, violating the principles of natural justice and thus such an order of assessment is vitiated both on fact and in law. 2.1 Th....
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....esaid addition, learned Deputy Commissioner of Income Tax has failed to appreciate the allegation that appellant has given advance to the farmers is wholly vague and unsubstantiated and no effort was made to verify the existence of such alleged farmers as such, addition made is unsustainable in law and deserves to be deleted. 3.3 That the learned Deputy Commissioner of Income Tax has further erred in placing reliance on the statement of Shri Satish Pawa recorded during the course of search on 14.09.2010, which statement was recorded under duress and threat, was duly retracted on 20.09.2010, stating that the surrender made was under the threat and duress of investigation wing and was not voluntary, as such, addition made without there being any other corroborative evidence or material, and on the basis of statement which was duly retracted is unsustainable in law and deserves to be deleted. 3.4 That the learned Deputy Commissioner of Income Tax has erred in failing to appreciate that it is a settled law that if confessional statement is retracted, then unless there is corroborative evidence or material. to substantiate the confession made in the statement, addition....
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....and deserves to be deleted. 3.10 That the learned Deputy Commissioner of Income Tax has erred in failing to appreciate that during the course of the assessment proceedings, appellant on 8th March, 2013 duly appeared alongwith original sample invoices for the purchase of paddy alongwith the letter dated 07.03.2013, however on the said, date learned Deputy Commissioner of Income Tax did not see the documents brought by the appellant, nor on the subsequent dates he directed to produce the records, as such, adverse finding recorded by the learned Deputy Commissioner of Income Tax is factually incorrect and deserves to be deleted. 4. That the learned Deputy Commissioner of Income Tax has erred both in law and on facts in levying interest under section 234A and section 234B of the Act, which interest is not leviable on the facts and circumstances of the case of the appellant. 5. That on the facts and circumstances of the instance case, learned Deputy Commissioner of Income Tax has erred in initiating the penalty proceedings under section 271 (1)( c) of the Income Tax Act, 1961. It is therefore, prayed that it be held that the assessment so made is with....
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....ommissioner [Appeals] are contained in Sections 250 and 251 of I.T. Act, which are reproduced below for ready reference: "250. (1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal, and shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. (2) The following shall have the right to be heard at the hearing of the appeal- (a) the appellant either in person or by an authorized representative; (b) the Assessing Officer, either in person 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 ....
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....ing the points for determination and to then pass an order on each of the points which arose for consideration; and the Ld. CIT(A) was further obliged to state the reasons for her decision on each such points which arose for determination. The Ld. CIT(A) is duty bound to dispose of the appeal through a speaking order on merits, on all the points which arose for determination in the appellate proceedings, including on all the grounds of appeal. Moreover, the perusal of Section 251(1)(a) and (b) of I.T. Act and the further perusal of Explanation of Section 251(2) of I.T. Act shows that the Ld. CIT(A) is required to apply her mind to all the issues which arise from the impugned order before her, whether or not these issues have been raised by the Assessee before her. If the order of Ld. CIT(A) on merits is a summary order; as we have held in foregoing paragraph (3) of this order; it amounts to nonapplication of mind. This non-application of mind is a contravention of statutory role of Ld. CIT(A) U/s 251(2) of I.T. Act. Also, Section 251(1)(a) of I.T. Act provides that while disposing of an appeal against Assessment Order, Commissioner (Appeals) shall have the power to confirm, r....
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....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 or if the Assessee seeks to withdraw the appeal or if the assessee does not press the appeal. When the Commissioner (Appeals) dismisses the appeal of assessee for non-prosecution of appeal by the assessee; in effect, indirectly it leads to same results as withdrawal of appe....
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....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 which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act." (5) Whether the assessee attended the appellate proceedings before the Ld....