TaxTMI 
TaxTMI 
2019 (7) TMI 869
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....ce and challan for fee was no filed, although, impugned order and demand notice were duly uploaded and the details of challan and payment were feeded in item No. 16 of Form-35 in the absence of which, Form-35 could not had been uploaded. 2.1 That without prejudice, when appeal stand filed in time, without issuing a deficiency notice for want of assessment order, demand notice and copy of challan, the appeal cannot be dismissed as un-admitted. 3. That under the facts and circumstances Ld. CIT(A) erred in not adjudicating the appeal on merits. 4. That under the facts and circumstances of Ld. AO erred in law and on merits in not accepting the declared LTCG of Rs. 2,89,99,096/- on sale of shares of M/s Esteem Bio Organic Food Processing Ltd. and in not allowing the exemption claimed u/s.10 (38) and in making addition of Rs. 2,91,49,846/- u/s.68 for the total amt. of sale consideration received on sale of shares. 4.1 That the findings of AO are unsustainable for addition of Rs. 2,91,49,846/- in the absence of providing the copies of all materials used against the assessee and by not providing cross-examination of persons whose statements have been relied upon, thus no proper and....
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....on LTCG amt. 6. The A.O. erred in law in charging tax on addition of Rs. 2,91,49,846/- at the special rate u/s. l 15BBE. 7. That the interest u/s.234A/B/C has been wrongly charged. In any case it is highly excessive." (3.1) The Ld.CIT(A) dismissed the Assessee's appeal with the following observations in his aforesaid impugned order dated 28/09/2018: The present appeal has been filed by the appellant against an assessment order dated 27.12.2017 passed by the Ld. AO u/s 143(3) of I.T. Act, 1961 on a total income of Rs. 1,38,84,900/- against the return of income not available from the record of this office as the appellant has not filed the impugned assessment order despite repeated opportunities allowed by this office. The said assessment order not placed on record of this office has been impugned in the present appeal and is being contested by the appellant on the grounds of jurisdiction as well as merit. 2. Pursuant to the notice issued by this office requiring the appellant to file the copy of the impugned assessment order, demand notice and the challan for payment of fee, a letter was received from Shri Aman Gupta, CA stating that the written submission and paper book wa....
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....ADMISSION OF APPEAL BY CIT(A) FOR NON COMPLIANCE OF SEC.249 - Sec.249 has been fully complied with. - Appeal e-filed in time. - CIT(A) held that provisions of Sec.249 not complied with vide Para-4 of CIT(A) order for not filing the asstt. order - The asstt. order was duly filed with e-filed appeal (5) - Further all other documents namely details of challan, demand notice, challan, and other attachments were e-filed with appeal (2-6) - Details of challan also filled up in Form-35 without which appeal cannot be e-filed. (3) - Also, form-35 could not be uploaded without attachments. - Hence, the appeal was correctly filled and was liable to be admitted by CIT(A). - Further. Sec.249 nowhere provides that even alleged non filing of asstt. order, will make the appeal non admissible. - Hence, the appeal not admitted for non compliance of Sec.249 is also contrary - Covered by ITAT order in case of Akasnha Singhal wherein same CIT(A) vide similar order dismissed the appeal, which stood set aside by Hon'ble ITAT to CIT(A) vide ITA No. 820/Del/2019, order dtd. 23.04.2019." (4.) At the time of hearing before us, the Ld.AR for the assessee reiterated the submissions as pe....
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....re the Ld.CIT(A). The Ld. Departmental Representative ("DR", for short) did not express any objection to this prayer of the assessee. The Ld. DR also did not dispute or controvert the facts claimed and submissions made from assessee's side in the synopsis referred to in the foregoing paragraph (3.3.1) of this order. (4.1.1) We have heard both sides patiently. We have also carefully perused the materials on record. The relevant provisions under I.T. Act regarding maintainability of appeal made to Commissioner (Appeals) and regarding procedure in appeal, and powers of the Commissioner [Appeals] are contained in Sections 249, 250 and 251 of I.T. Act, which are reproduced below for ready reference: "249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of,- (i) where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is one hundred thousand ru....
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....ax which was payable by him: Provided that, in a case falling under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause. 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 grou....
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....of I.T.Act. However, perusal of foregoing paragraphs (3.3), (4) and (4.1) shows that the assessee denied these allegations in written submissions as per synopsis, as well as through oral submissions at the time of hearing; and further, that the facts claimed and submissions made in these written as well as oral submissions made on behalf of the assessee have not been neither disputed nor controverted by the Learned DR. Thus, the assessee's claim that the assessment order, details of challan etc., were e-filed with the appeal; is neither disputed nor controverted by Revenue. (4.2) Further, a perusal of the statutory provisions reproduced already in foregoing paragraph (4.1.1), 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 the points which arose for consideration; and the Ld. CIT(A) was further obliged to state the reasons for his decision on each such points which arose for determination. Thus, the Ld. CIT(A) was duty bound to dispose of the appeal on merits. Moreover, the perusal of Section 251(1)(a) and (b) of I.T. Act and the further perusal of Expla....
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.... 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 appeal by assessee. When the assessee is not permitted to withdra....
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....iged 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) As already noted in foregoing paragraph (4.1) of this order, the Ld.DR did no....