Ashish Dham, Delhi V. DCIT, New Delhi

ITA 1953/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8409 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 11-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Wrong claim; Validity of assessment; Non compliance
• Section: 143(3); 69

Judgement Text

ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1953/DEL/2016 ( ASSESSMENT YEAR: 2011-12) ASHISH DHAM, C-189, 1 ST FLOOR, SARVODAYA ENCLAVE, DELHI-110017. VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE-12(1). PAN NO: AAKPD2545D APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI SRIDHAR DORA, SR. DR, ORDER PER: ANADEE NATH MISSHRA, AM THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-16, NEW DELHI, [LD. CIT(A) FOR SHORT], DATED 15.02.2016, FOR ASSESSMENT YEAR 2011-12, ON THE FOLLOWING GROUNDS: 1. LD. CIT (APPEALS), WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN NOT DECIDING THE APPEAL ON THE MERITS OF THE CASE AND AS WELL AS ON VALIDITY /LEGALITY OF ASSESSMENT ORDER PASSED BY LD. ASSESSING OFFICER WITHOUT HAVING THE JURISDI CTION OVER THE CASE. ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 2 OF 11 2. THAT LD. CIT(A) WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE GIVING PROPER OPPORTUNITY OF BEING HEARD IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITIO N OF RS. 12,52,000/- UNDER SECTION 69 OF THE I.T. ACT ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT MADE BY LD. ASSESSING OFFICER. 3. THAT LD. CIT(A) WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITIO N OF RS. 17,64,241/- MADE BY LD. ASSESSING OFFICER BY DISALLOWING THE IN TEREST ON HOUSING LOAN FROM INCOME HOUSE PROPERTY. 4. THAT LD. CIT(A) WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD AND RAISING ANY Q UERY DURING THE COURSE OF HEARING IS NOT JUSTIFIED IN LAW AND FACTS AND CI RCUMSTANCES OF THE CONFIRMING THE ADDITION THE ADDITION OF RS. 17,00,0 00/- ON ACCOUNT OF ALLEGED DIFFERENCE IN THE RECEIPTS AS PER 26AS AND RETURN O F INCOME. 5. ASSESSEE HAS EVERY RIGHT TO MAKE, ADD, DELETE, M ODIFY, OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. (2) THE ASSESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (I.T. ACT FOR SHORT) WAS PASSED ON 31/12/2013, IN WHICH THE FOLLO WING ADDITIONS WERE MADE BY THE ASSESSING OFFICER (AO): INCOME AS DECLARED BY THE ASSESSEE - RS. 44,71, 710 ADDITION U/S 69 OF THE I.T. ACT - RS. 12,52,00 0/- ADDITION ON ACCOUNT OF WRONG CLAIM OF DEDUCTION U/S 24(B) OF THE I.T. ACT RS. 17,64,241/ - RS . 17,64,241/- ADDITION ON ACCOUNT OF DIFFERENCE IN THE RECEIPTS AS PER 26AS AND RETURN OF INCOME - RS. 17,00,0 00 TOTAL INCOME - RS. 91,87,951/- ROUNDED OFF - RS. 91,87,950 (3) THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). HOWEVER, THE ASSESSEE DID NOT COMPLY WITH HEARING NOTICES ISSUED BY THE LD. CIT(A ). AS THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A), THE LD. CIT(A) CONCLUDED TH AT THE ASSESSEE WAS NOT INTERESTED ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 3 OF 11 IN PROSECUTING HIS CASE AND HE DISMISSED THE ASSESS EES APPEAL WITH THE FOLLOWING OBSERVATIONS IN HIS AFORESAID IMPUGNED ORDER DATED 15/02/2016: FINDINGS:- OPPORTUNITIES GRANTED TO APPELLANT:- (I) CASE WAS FIXED FOR 19/10/2015 BY ISSUING NOTICE U/S 250. NO ONE ATTENDED. (II) ANOTHER NOTICE U/S 250 IS ISSUED ON 16/11/2015 AND HEARING FIXED ON 09/12/2015. (III) ON 9/12/2015 CASE WAS ADJOURNED TO 30/12/2015. NON E ATTENDED ON 30/12/2015. (IV) ON 12/01/2016 ANOTHER NOTICE U/S 250 ISSUED CASE FI XED FOR HEARING ON 04/02/2016. (V) ON 04/02/2016 CASE WAS ADJOURNED TO 11/02/2016. NO ONE ATTENDED ON 11/02/2016 OR TILL THE PASSING OF THIS ORDER. FROM THE OPPORTUNITIES GIVEN TO THE ASSESSEE AND HI S NON COMPLIANT ATTITUDE, IT IS CLEAR THAT APPELLANT IS NOT INTERESTED IN PROSEC UTING HIS CASE. AS THERE IS NOTHING ON RECORD TO REBUT THE CONCLUSION DRAWN BY THE ASSESSING OFFICER. THE ADDITIONS MADE BY AO ARE CONFIRMED. IN THE RESULT THE APPEAL OF THE APPELLANT IS DISMIS SED. (3.1) THE ASSESSEE FILED APPEAL IN INCOME TAX APPELLATE TRIBUNAL (ITAT), AGAINST THE IMPUGNED ORDER DATED 15/02/2016 OF THE LD. CIT(A). WE FIND FROM THE PERUSAL OF RECORD, THAT THE FOLLOWING GROUNDS OF APPEAL WERE R AISED BY THE ASSESSEE BEFORE THE LD. CIT(A). 1 . THAT ORDER PASSED BY LD. ASSESSING OFFICER IS WITHO UT JURISDICTION AND BAD IN LAW AND SHOULD BE QUASHED AB-INITIO. 2. THAT WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 1 , ORDER PASSED BY LD. ASSESSING OFFICER IS BARRED BY LIMITATION AND BAD I N LAW AND SHOULD BE ANNULLED. 3. THAT WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 1 AND 2 LD. ASSESSING OFFICER WITHOUT APPRECIATING THE CORRECT FACTS OF T HE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN MAKING THE ADDITION OF RS. 12,52,000/- ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 4 OF 11 UNDER SECTION 69 OF THE I.T. ACT ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT. 4. THAT LD. ASSESSING OFFICER WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD I S NOT JUSTIFIED IN LAW AND FACTS ;AND CIRCUMSTANCES OF THE CASE IN MAKING THE ADDITION OF RS. 17,64,241/- BY DISALLOWING THE INTEREST ON HOUSING LOAN FROM INCOME FROM HOUSE PROPERTY. 5. THAT LD ASSESSING OFFICER WITHOUT APPRECIATING T HE CORRECT FACTS OF THE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD A ND RAISING ANY QUERY DURING THE COURSE OF HEARING IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN MAKING THE ADDITION OF RS. 17,00,000/- ON ACCOUNT OF ALLEGED DIFFERENCE IN THE RECEIPTS AS PE R 26AS AND RETURN OF INCOME. 6. ASSESSEE HAS EVERY RIGHT TO MAKE, ADD, DELETE, M ODIFY OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. (3.2) HOWEVER, THE LD. CIT(A) IN HIS AFORESAID IMPUGNED ORDER DATED 15/02/2016, HAS NOT DISPOSED OFF VARIOUS GROUNDS OF APPEAL THROUGH A SPEAKING ORDER ON MERITS. INSTEAD, THE LD. CIT(A) HAS DISMISSED ASSESSEES AP PEAL ON MERITS, IN A SUMMARY MANNER THROUGH A NON-SPEAKING ORDER, ON MERITS. (4) THE RELEVANT PROVISIONS UNDER I.T. ACT REGARDING P ROCEDURE IN APPEAL, AND POWERS OF THE COMMISSIONER [APPEALS] ARE CONTAINED IN SECTIONS 250 AND 251 OF I.T. ACT, WHICH ARE REPRODUCED BELOW FOR READY REFERENCE : 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 TH E 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 AUTHOR IZED 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. ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 5 OF 11 (4) THE COMMISSIONER (APPEALS) MAY, BEFORE DISPOSIN G 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 CO MMISSIONER (APPEALS). (5) THE COMMISSIONER (APPEALS) MAY, AT THE HEARING OF AN APPEAL, ALLOW THE APPELLANT TO GO INTO ANY GROUND OF APPEAL NOT SPECI FIED IN THE GROUNDS OF APPEAL, IF THE COMMISSIONER (APPEALS) IS SATISFIED THAT THE OM ISSION OF THAT GROUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASONABLE. (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSI NG OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. [(6A) IN EVERY APPEAL, THE COMMISSIONER (APPEALS), WHERE IT IS POSSIBLE, MAY HEAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH APPEAL IS FILED BEFORE HIM UNDER SUB-SECTION (1) OF SECTION 246A (7) ON THE DISPOSAL OF THE APPEAL, THE COMMISSIONER (APPEALS) SHALL COMMUNICATE THE ORDER PASSED BY HIM TO THE ASSESSEE AND TO THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER. 251. ( 1) IN DISPOSING OF AN APPEAL, THE COMMISSIONER (APP EALS) SHALL HAVE THE FOLLOWING POWERS (A) IN APPEAL AGAINST AN ORDER OF ASSESSMENT, MAY CONFI RM, REDUCE, ENHANCE OR ANNUAL THE ASSESSMENT (AA) IN APPEAL AGAINST THE ORDER OF ASSESSMENT IN R ESPECT OF WHICH THE PROCEEDING BEFORE THE SETTLEMENT COMMISSION ABATES UNDER SECTI ON 245HA, HE MAY, AFTER TAKING INTO CONSIDERATION ALL THE MATERIAL AND OTHE R 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 PROCEED ING 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 PENALT Y, 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 IN T HE 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 HA S HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT OR REDUCT ION. EXPLANATION.IN DISPOSING OF AN APPEAL, THE COMMISS IONER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF THE P ROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT S UCH MATTER WAS NOT RAISED BEFORE THE COMMISSIONER (APPEALS) BY THE APPELLANT. SE MORE ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 6 OF 11 (4.1) A PERUSAL OF THE ABOVE PROVISIONS OF LAW SHOWS THA T U/S 250(6) OF I.T. ACT THE LD. CIT(A) WAS OBLIGED TO DISPOSE OF THE APPEAL IN WRIT ING 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 OBLIG ED TO STATE THE REASONS FOR HIS DECISION ON EACH SUCH POINTS WHICH AROSE FOR DETERM INATION. THUS, THE LD. CIT(A) WAS DUTY BOUND TO DISPOSE OF THE APPEAL ON MERITS. MORE OVER, THE PERUSAL OF SECTION 251(1)(A) AND (B) OF I.T. ACT AND THE FURTHER PERUS AL OF EXPLANATION OF SECTION 251(2) OF I.T. ACT SHOWS THAT THE LD. CIT(A) WAS REQUIRED TO APPLY HIS MIND TO ALL THE ISSUES WHICH AROSE FROM THE IMPUGNED ORDER BEFORE HIM, WHETHER O R NOT THESE ISSUES HAD BEEN RAISED BY THE ASSESSEE BEFORE HIM. ALSO, SECTION 25 1(1)(A) OF I.T. ACT PROVIDES THAT WHILE DISPOSING OF AN APPEAL AGAINST ASSESSMENT ORD ER, COMMISSIONER (APPEALS) SHALL HAVE THE POWER TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. SIMILARLY, THE SECTION 251(1) (B) PROVIDES THAT IN DISPOSING OF AN APPEAL AGAINST AN ORDER IMPOSING A PENALTY, COMMISSIONER (APPEALS) MAY CONFIRM OR CANC EL SUCH ORDERS OR VARY IT SO AS TO EITHER TO ENHANCE OR TO REDUCE THE PENALTY. ON CUM ULATIVE CONSIDERATION THE PROVISIONS U/S 250(6) READ WITH SECTIONS 250(4), 250(5), 251(1 )(A), 251(1)(B) AND EXPLANATION OF SECTION 251(2) OF I.T. ACT , WE COME TO THE CONCLUS ION THAT THE LD. CIT(A) IS NOT EMPOWERED TO DISMISS THE APPEAL FOR NON-PROSECUTION OF APPEAL AND IS OBLIGED TO DISPOSE OF THE APPEAL ON MERITS. ONCE T HE ASSESSEE FILES AN APPEAL U/S 246A OF I.T. ACT, THE ASSESSEE SETS IN MOTION T HE MACHINERY DESIGNED FOR DISPOSAL OF THE APPEAL UNDER SECTIONS 250 AND 251 O F I.T. ACT. IF THE APPEAL FILED BY THE ASSESSEE FULFILS THE REQUIREMENTS OF M AINTAINABILITY AND ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 7 OF 11 ADMISSIBILITY PRESCRIBED UNDER SECTIONS 246, 246A, 248 AND 249 OF I.T. ACT; NEITHER THE ASSESSEE CAN STOP THE FURTHER WORKING O F THAT MACHINERY AS A MATTER OF RIGHT BY WITHDRAWING THE APPEAL, OR BY NO T PRESSING THE APPEAL, OR BY NON-PROSECUTION OF THE APPEAL; NOR THE FIRST APP ELLATE AUTHORITY, CIT(A) IN THIS CASE, CAN HALT THIS MACHINERY BY IGNORING EITH ER THE PROCEDURE IN APPEAL PRESCRIBED U/S 250 OF I.T. ACT OR POWERS OF COMMISS IONER (APPEALS) PRESCRIBED U/S 251 OF I.T ACT. CIT(A), THE FIRST AP PELLATE AUTHORITY, CANNOT DISMISS ASSESSEES APPEAL IN LIMINE FOR NON- PROSEC UTION WITHOUT DECIDING THE APPEAL ON MERITS THROUGH AN ORDER IN WRITING, STATI NG THE POINTS OF DETERMINATION IN THE APPEAL, THE DECISION THEREON A ND 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 MAD E 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 C AN DO AND ALSO DIRECT HIM TO DO WHAT HE FAILED TO DO. IN THIS CONTEXT, USEFUL REFE RENCE MAY ALSO BE MADE TO APEX COURTS 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, CANNO T WITHDRAW IT AND EVEN IF THE ASSESSEE REFUSES TO APPEAR AT THE HEARING, THE FIRS T 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 ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 8 OF 11 IS NOT OPEN TO THE ASSESSING OFFICER TO NOT COMPLET E THE ASSESSMENT PROCEEDINGS BY ALLOWING THE ASSESSEE TO WITHDRAW RE TURN 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 ASSESSE E OR IF THE ASSESSEE SEEKS TO WITHDRAW THE APPEAL OR IF THE ASSESSEE DOE S NOT PRESS THE APPEAL. WHEN THE COMMISSIONER (APPEALS) DISMISSES THE APPEA L OF ASSESSEE FOR NON- PROSECUTION OF APPEAL BY THE ASSESSEE; IN EFFECT, I NDIRECTLY IT LEADS TO SAME RESULTS AS WITHDRAWAL OF APPEAL BY ASSESSEE. WHEN THE ASSESSEE IS NOT PERMITTED TO WITHDRAW THE APPEAL FILED BEFORE THE FIRST APPELLAT E AUTHORITY, THE FIRST APPELLATE AUTHORITY IS DUTY BOUND TO NOT ALLOW A SI TUATION TO ARISE, THROUGH DISMISSAL OF APPEAL FOR NON-PROSECUTION OF APPEAL B EFORE THE FIRST APPELLATE AUTHORITY; IN WHICH, IN EFFECT, INDIRECTLY THE SAM E RESULTS ARE OBTAINED AS ARISE FROM WITHDRAWAL OF APPEAL BY THE ASSESSEE. WH AT CANNOT BE PERMITTED IN LAW TO BE DONE DIRECTLY, CANNOT BE PERMITTED TO BE DONE INDIRECTLY EITHER, AS IS WELL SETTLED. IN VIEW OF THE FOREGOING DISCUSSION; AND ON CAREF UL PERUSAL OF SECTION 250(6) R.W.S. 250(4), 250(5), 251(1)(A), 25 1(1)(B) AND EXPLANATION TO SECTION 251(2) OF I.T. ACT; IT IS AMPLY CLEAR THAT LD. CIT( A) HAS NO POWER TO DISMISS APPEAL IN LIMINE FOR NON-PROSECUTION OF APPEAL BY THE ASSESSE E. WE DRAW SUPPORT FROM ORDER OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) [2016] 240 TAXMAN 133 FOR THE PROPOSITIONS THAT LD. CIT(A) IS REQUIRED TO APPLY HIS MIND TO ALL ISSUES WHICH ARISE FROM IMPUG NED ORDER BEFORE HIM WHETHER OR NOT ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 9 OF 11 SAME HAD BEEN RAISED BY APPELLANT BEFORE HIM; AND T HAT CIT(A) IS OBLIGED TO DISPOSE OF THE APPEAL ON MERITS. IN THIS CASE, IT WAS HELD AS UNDER: 8 IT IS VERY CLEAR ONCE AN APPEAL IS PREFERRED B EFORE 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 INQ UIRY 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 W RITING 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 HAV E THE POWER TO CONFIRM, REDUCE, ENHANCE OR ANNUL AN ASSESSMENT AND/OR PENALTY. BESI DES EXPLANATION TO SUB-SECTION (2) OF SECTION 251 OF THE ACT ALSO MAKES IT CLEAR T HAT 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 CONS IDERATION, EVEN IF THE ISSUE IS NOT RAISED BY THE APPELLANT IN ITS APPEAL BEFORE THE CI T(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 RE STORE IT TO THE ASSESSING OFFICER FOR PASSING A FRESH ORDER STANDS WITHDRAWN. THEREFO RE, IT WOULD BE NOTICED THAT THE POWERS OF THE CIT(A) IS CO-TERMINUS WITH THAT OF TH E 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-PROS ECUTION 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 H IM WHETHER OR NOT THE SAME HAS BEEN RAISED BY THE APPELLANT BEFORE HIM. ACCORD INGLY, THE LAW DOES NOT EMPOWER THE CIT(A) TO DISMISS THE APPEAL FOR NON-PR OSECUTION AS IS EVIDENT FROM THE PROVISIONS OF THE ACT. (5) IN VIEW OF THE FOREGOING PARAGRAPHS, WE ARE OF THE VIEW THAT THE LD. CIT(A) ERRED IN DISMISSING ASSESSEES APPEAL ON MERITS IN A SUMMARY MANNER, WITHOUT GIVING DETAILED REASONS FOR HIS ORDER, ON VARIOUS GROUNDS OF APPEAL BEFORE HIM. WE FURTHER HOLD THAT THE LD. CIT(A) ERRED IN PASSING A NON-SPE AKING ORDER ON EACH OF THE POINTS WHICH AROSE FOR HIS CONSIDERATION AND HE FAILED IN DISCHARGING THE STATUTORY OBLIGATION TO ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 10 OF 11 STATE THE REASONS FOR HIS DECISION ON EACH SUCH POI NTS, WHICH AROSE FOR DETERMINATION IN ASSESSEES APPEAL BEFORE THE LD. CIT(A). THEREFORE, WE SET ASIDE THE IMPUGNED ORDER DATED 15/02/2016 OF LD. CIT(A); AND WE DIRECT THE L D. CIT(A) TO PASS DENOVO ORDER AS PER LAW, IN ACCORDANCE WITH SECTIONS 250 AND 251 OF I.T. ACT, FOR FRESH DISPOSAL OF APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) AGAINST THE AFORESAID ASSESSMENT ORDER DATED 31/12/2013. (5) IN THE RESULT, ASSESSEES APPEAL IS TREATED AS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/ 01/2019 SD/- SD/- (H.S. SIDHU) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04.01.2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-1953/DEL/2016. ASHISH DHAM. PAGE 11 OF 11 DATE OF DICTATION 03/01/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04/01/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER