2026 (2) TMI 1431

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....matter is heard after recording the submissions of the Ld. Sr. DR and on a careful perusal of the materials available on record. 3. At the very outset, it is noted that the Ld. CIT(Appeals)/NFAC had dismissed the appeal of the assessee in limine by not condoning the delay of 1058 days. That as discernable from the order of the Ld. CIT(Appeals)/NFAC, sufficient cause in accordance with Section 249(3) of the Income Tax Act, 1961 (for short 'the Act') has not been established in the case of the assessee and hence, the appeal of the assessee was dismissed as barred by limitation. 4. The Ld. Sr. DR fairly conceded that the matter may be remanded back to the file of the Ld. CIT(Appeals)/NFAC for denovo adjudication as per law after consider....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....T(A). Thus once an assessee files an appeal under s. 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 w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO 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-prosecu....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n decide on merits of the case in terms with Section 250(4) & (6) of the Act. Further, as per the dictate of the decision of the Hon'ble High Court of Bombay in the case of CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 297 CTR 614 (Bom), the Ld. CIT(Appeals)/NFAC had no power to dismiss an appeal in limine on the ground of non-prosecution and the same jurisprudence transcends into the situation that the Ld. CIT(Appeals)/NFAC has no power to dismiss an appeal in limine on ground of delay only without referring and discussing the contents of the assessment order and Form 35 and its annexures. Needless to say, the Ld. CIT(Appeals)/NFAC shall afford reasonable opportunity of being heard to the assessee as per law. Accordingly, the order of the....