TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 1526
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved identity, genuineness and creditworthiness of the investor companies is totally wrong, bad in law and needs to be quashed. 3. That the Learned ITO erred on facts and on law in making the impugned addition of Rs. 22,23,00,000/- being the amount of investment made by nine shareholders ignoring the fact that all the nine shareholders have filed confirmation of investment made by them, their PAN, Copy of their income tax return, Balance Sheet, Bank Statements in response to enquiry made by him u/s 133(6). All the nine investor companies are genuine legal entities and are duly registered with the ROC. In spite of the fact that the assessee fulfilled all the requirements of Section 68 and the case is fully covered with the Supreme Court judgment of CIT Vs. Orissa Corporation and Lovely Exports Pvt. Ltd., the AO made the addition. The addition made is totally wrong, bad in law and needs to be quashed. 4. That the assessee prays permission to add, delete or amend one or more grounds of appeal. 5. That the assessee assures unstinted co-operation in all proceedings before your goodself." (B) The assessee filed return of income on 29.09.2012 declaring income of Rs. 12,06,210/-. Vid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erely, Sd/- (Diwakar Singh) Jt. Commissioner of Income Tax (OSD) (B.2) At the time of hearing before us on 06.04.2022, none was present on behalf of the assessee. In the absence of any representation from the assessee's side, we have heard the Ld. Commissioner of Income Tax, Departmental Representative ("CITDR", for short). She relied on the orders of the Assessing Officer and the Ld. CIT(A). (C) We have perused the materials on record. We have heard the Ld. CIT-DR. We find from the perusal of the impugned appellate order dated 01.03.2017 of Ld. CIT(A) that the Ld. CIT(A) dismissed the assessee's appeal in limine , taking adverse view of non- compliance with notices of hearing issued by office of the Ld. CIT(A). She has recorded in her impugned order that hearings were fixed on 21.07.2016, 09.12.2016, 03.01.2017, 02.02.2017 and 20.02.2017. The Ld. CIT(A) has further recorded that either there was non-appearance from the assessee's side or adjournment was requested. The Ld. CIT(A) dismissed the assessee's appeal in limine on account of non-appearance, stating that non- appearance by the assessee gave an impression that the assessee was not interested in present this appeal. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results 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 ih 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. " (C.1.1) A perusal of the above provisions of law shows that U/s 250(6) of I.T. Act the Ld. CIT(A) was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 the first appellate authority, the Ld. CIT(A) in the case before us, has plenary powers in disposing off an appeal; that the scope of her power is co-terminus with that of the ITO, that she 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 Hon'ble Apex Court's decisions in the cases of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 (SC) 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 underassessment, 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, not open for Ld. CIT(A) to not pass order on merits by dismissing the appeal i....