TaxTMI 
TaxTMI 
2019 (7) TMI 869
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....e appeal by mentioning that the asstt. order, demand notice 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 cr....
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..../- u/s.69C as alleged unexplained commission exp. @3% of LTCG. The Ld A.O. also erred in calculating 3% on total sale proceeds against findings of 3% 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 t....
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.... the adjournment application - The reasons mentioned in the adjournment application wrongly rejected vide Para- 3 of CIT(A) order. - CIT(A) has passed ex-parte order without giving any reasonable opportunity of hearing. G.N.2 NON - 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....
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....opportunity of being heard to the assessee." (4.1) At the time of hearing before us, the Learned AR of the assessee made a prayer for setting aside the order of the Ld.CIT(A) with the direction to Ld.CIT(A) to pass fresh order on admissibility and maintainability of the appeal; and also on merits in respect of grounds of appeal raised by the assessee in appeal before 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 ....
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....e expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax 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; ....
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....mmissioner (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 (4.1.2.) Ld.CIT(A) dismissed assessee's appeal by holding that the assessee had not complied with section 249 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. ....
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....t dismiss assessee's appeal in limine for non- prosecution without deciding the appeal on merits through an order in writing, stating the points of determination in the appeal, the decision thereon and the reason for the decision. It is well-settled that powers of Ld. CIT(A) are co-terminus 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 ....
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....at while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any 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 ....