JAI SHRIRAM SAHAKARI PATH SANSTHAN MARIYADIT, PUNE V. ITO, WARD 6(4), PUNE, PUNE

ITA 173/PUN/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2631 (ITAT-PUNE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-04-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 28-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 250; 251; 69A; 246A

Judgement Text

।आयकर अपीलीय अिधकरण ”ए” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.173/PUN/2024 िनधाᭅरण वषᭅ / Assessment Year : 2017-18 Jai Shriram Sahakari Pat Sansthan Maryadit, 1085, Bhawani Peth, Padmashali Puram, Kamgar Middan, Nr Watar Tank, Pune – 411042. PAN: AACAJ7371A V s The Income Tax Officer, Ward-6(4), Pune. Appellant / Revenue Respondent / Assessee Assessee by None. Revenue by Shri Ramnath P Murkunde – DR Date of hearing 29/04/2024 Date of pronouncement 30/04/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee against the order of Ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 dated 10.10.2023. The Assessee has raised the following grounds of appeal : “1. Learned CIT(A) erred in law and on facts in confirming and the ITO, Ward 6(4), Pune (learned AO) erred in law and on facts in assessing appellant's total income at Rs.1,17,73,000/- by making addition of the same amount u/s 69A of the ITA, 1961. 2. Learned CIT(A) and the learned AO erred in law and on facts in making addition u/s 69A without appreciating that cash deposit by the appellant is not income of the appellant as the same amount was collected from MSEDCL consumers on behalf of MSEDCL and back-to-back transferred to MSEDCL and ITA No.173/PUN/2024 Jai Shriram Sahakari Path Sansthan Maryadit [A] 2 appellant acted only as the commission agent in the process. 3. Learned CIT(A) and learned AO erred in law and on facts in making an addition of Rs.1,17,73,000/- u/s 69A under wrong assumption of cash deposit as appellant's income by quoting "Human Probability Test” and only on the reason of cash deposits of old SBN's on various dates instead of depositing it in single-go after demonetization was announce. 4. Learned CIT(A) and the learned AO failed to understand that deposited cash was collected cash was on behalf of MSEDCL, a government organization which was permitted to accept SBN’s and appellant acted as an agent of a government organization and as such, appellant was also eligible to accept SBN's on behalf of MSEDCL. 5. The appellant craves leave to add, alter, clarify, explain, modify, delete any of the grounds of appeal, and to seek any just and fair relief.” 2. At the time of hearing, no one appeared on behalf of the assessee. No adjournment letter was found on record. Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC]. Findings & Analysis : 4. We have heard ld.DR for the Revenue and perused the records. It is observed from the order of the ld.CIT(A)[NFAC] that the ld.CIT(A)[NFAC] did not decide the grounds of appeal on merit but merely dismissed the appeal of the assessee for non- compliance. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits. ITA No.173/PUN/2024 Jai Shriram Sahakari Path Sansthan Maryadit [A] 3 4.1 It is observed that the ld.CIT(A) vide its order dated 10.10.2023 has dismissed appeal of the assessee as under : “In the absence of the any details submitted by the Appellant to controvert the conclusion arrived at by the AO, it is found unnecessary and imprudent to disturb the order of the AO and his findings. Therefore, the impugned assessment order is upheld and no interference is called for.” 4.2 The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF)(Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that 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 ITA No.173/PUN/2024 Jai Shriram Sahakari Path Sansthan Maryadit [A] 4 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 coterminous 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.” Unquote. 5. Thus, the Hon’ble Bombay High Court has categorically held that ld.CIT(A) has to decide the appeal on merit and ld.CIT(A) does not have any power to dismiss appeal for non-prosecution. 5.1 Also it emanates from the Affidavit of the Assessee that assessee was unaware of the notices issued for hearing as the concerned designated employee left the organisation. 6. In view of the above, the order of the ld.CIT(A)[NFAC] is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the assessee. ITA No.173/PUN/2024 Jai Shriram Sahakari Path Sansthan Maryadit [A] 5 7. Accordingly, appeal of the assessee in ITA No.173/PUN/2024 is allowed for statistical purpose. Order pronounced in the open Court on 30 th April, 2024. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 30 th April, 2024/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.