Pankaj Sharma, New Delhi V. DCIT, Ghaziabad

ITA 2540/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1245 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 06-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: KAPIL GOEL ADV CONSOLIDATED
• Keywords: Set aside
• Section: 250; 251; 246A

Judgement Text

ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 1 OF 18 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: D: NEW DELHI) BEFORE SHRI K.N. CHARY, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NOS:- 2531, 2533 AND 2535/DEL/2016 ( ASSESSMENT YEARS: 2009-10, 2010-11 AND 2011-12) VISHNU BHAGWAN, 118, SUKHI MAL, DASNA GATE, GHAZIABAD. VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, GHAZIABAD. PAN NO: AKEPB0169K APPELLANT RESPONDENT ITA NOS:- 2538, 2540/DEL/2016 ( ASSESSMENT YEARS: 2010-11 AND 2011-12) PANKAJ SHARMA, B-74, GAGAN ENCLAVE, GHAZIABAD. VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, GHAZIABAD. PAN NO: AWYPS9585Q APPELLANT RESPONDENT ITA NOS:- 2542/DEL/2016 TO 2548 /DEL/2016 ( ASSESSMENT YEARS: 2005-06 TO 2011-12) MANOJ KUMAR JAIN, R-8/11, FLATE NO. 700, RAJ NAGAR, GHAZIABAD. VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, GHAZIABAD. PAN NO: ACLPJ4982H APPELLANT RESPONDENT ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 2 OF 18 REVENUE BY : SMT. NAINA SOIN KAPIL, SR. DR ASSESSEE BY : SHRI KAPIL GOEL, ADV. CONSOLIDATED ORDER PER BENCH (A) IN ALL THESE CASES, THE ASSESSEES HAVE FILED AP PEALS AGAINST ORDERS DATED 07.03.2016 AND 08.03.2016 OF LEARNED COMMISSIONER O F INCOME TAX (APPEALS)-IV, KANPUR, (LD. CIT(A), IN SHORT) PERTAINING TO DIFF ERENT ASSESSMENT YEARS. IN THE AFORESAID ORDERS, THE LD. CIT(A) DISMISSED THE ASSE SSEES APPEALS IN LIMINE FOR NON- PROSECUTION OF THE APPEALS BY THE RESPECTIVE ASSESS EES. FOR THE SAKE OF CONVENIENCE THESE APPEALS ARE HEREBY DISPOSED OFF THROUGH THIS CONSOLIDATED ORDER. THE GROUNDS OF ALL THESE APPEALS ARE AS UNDER: ITA NO. -2531/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 71,990/- U/S 27 1B OF THE INCOME- TAX ACT, 1961 AND THEREFORE, PENALTY ORDER DESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 71,990/- U/S 27 1B OF THE ACT AND ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 3 OF 18 FAILED TO OBSERVE THAT ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND IN CASE OF NON MAINTENANCE OF BOOKS OF ACCOUNTS ASSESSEE CANNOT BE PENALIZED FOR FAILURE TO GET ACCOUNTS AUD ITED AND THEREFORE PENALTY DESERVES TO BE CANCELLED. C. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS ON THE CASE BY IMPOSING THE PENALTY OF RS. 71,990/- U/S 27 1B OF THE ACT BY WRONGLY HOLDING THAT ENTRIES RECORDED IN THE BANK A CCOUNTS ALSO PARTAKE THE CHARACTER OF BOOKS OF ACCOUNTS AND THER EFORE PENALTY ORDER DESERVES TO BE CANCELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 71,990/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2533/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,36,680/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,36,680/- U/S 271B OF THE ACT AND FAILED TO OBSERVE THAT ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND IN CASE OF NON MAINTENANCE OF BOOKS OF ACCOUNTS ASSESSEE CANNOT BE PENALIZED FOR FAILURE TO GET ACCOUNTS AUD ITED AND THEREFORE PENALTY DESERVES TO BE CANCELLED. C. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS ON THE CASE BY IMPOSING THE PENALTY OF RS. 1,36,680/- U/S 271B OF THE ACT BY WRONGLY HOLDING THAT ENTRIES RECORDED IN THE BANK A CCOUNTS ALSO ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 4 OF 18 PARTAKE THE CHARACTER OF BOOKS OF ACCOUNTS AND THER EFORE PENALTY ORDER DESERVES TO BE CANCELLED. D. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,36,680/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2535/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,09,800/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,09,800/- U/S 271B OF THE ACT AND FAILED TO OBSERVE THAT ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND IN CASE OF NON MAINTENANCE OF BOOKS OF ACCOUNTS ASSESSEE CANNOT BE PENALIZED FOR FAILURE TO GET ACCOUNTS AUD ITED AND THEREFORE PENALTY DESERVES TO BE CANCELLED. C. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS ON THE CASE BY IMPOSING THE PENALTY OF RS. 1,09,800/- U/S 271B OF THE ACT BY WRONGLY HOLDING THAT ENTRIES RECORDED IN THE BANK A CCOUNTS ALSO ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 5 OF 18 PARTAKE THE CHARACTER OF BOOKS OF ACCOUNTS AND THER EFORE PENALTY ORDER DESERVES TO BE CANCELLED. D. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,09,800/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2538/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE ACT AND FAILED TO OBSERVE THAT ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND IN CASE OF NON MAINTENANCE OF BOOKS OF ACCOUNTS ASSESSEE CANNOT BE PENALIZED FOR FAILURE TO GET ACCOUNTS AUD ITED AND THEREFORE PENALTY DESERVES TO BE CANCELLED. C. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS ON THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE ACT BY WRONGLY HOLDING THAT ENTRIES RECORDED IN THE BANK A CCOUNTS ALSO PARTAKE THE CHARACTER OF BOOKS OF ACCOUNTS AND THER EFORE PENALTY ORDER DESERVES TO BE CANCELLED. ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 6 OF 18 D. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2540/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE ACT AND FAILED TO OBSERVE THAT ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNT AND IN CASE OF NON MAINTENANCE OF BOOKS OF ACCOUNTS ASSESSEE CANNOT BE PENALIZED FOR FAILURE TO GET ACCOUNTS AUD ITED AND THEREFORE PENALTY DESERVES TO BE CANCELLED. C. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS ON THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE ACT BY WRONGLY HOLDING THAT ENTRIES RECORDED IN THE BANK A CCOUNTS ALSO PARTAKE THE CHARACTER OF BOOKS OF ACCOUNTS AND THER EFORE PENALTY ORDER DESERVES TO BE CANCELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 7 OF 18 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2542/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 8 OF 18 ITA NO. -2543/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2544/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 9 OF 18 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2545/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 10 OF 18 INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2546/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 11 OF 18 PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2547/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. C. THAT WITHOUT PREJUDICE TO ABOVE, IT IS WELL SETT LED LAW THAT PENALTY LAW IS PROSPECTIVE LAW AND IN THE YEAR UNDER APPEAL AMO UNT OF MAXIMUM PENALTY IMPOSABLE WAS RS. 1 LAC AND AMENDMENT IN SE CTION 271B OF THE ACT REVISING THE PENALTY AMOUNT FROM RS. 1 LAC TO RS. 1.50 LAC ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 12 OF 18 CAME INTO EFFECT FROM A.Y. 2011-12, HENCE PENALTY I MPOSED AT RS. 1.50 LAC IN THE YEAR UNDER APPEAL IS CONTRARY TO THE PRO VISION OF INCOME-TAX ACT AND THEREFORE, PENALTY ORDER DESERVES TO BE CAN CELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. ITA NO. -2548/DEL/2016 1. THAT THE LD. CIT(A)-IV, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT IN LIMINE FOR NON ATTENDANC E BY THE APPELLANT. 2. THAT THE LD. CIT(A)-IV KANPUR HAD NO POWER TO DI SMISS THE APPEAL IS LIMINE FOR NON ATTENDANCE BY THE APPELLANT IN THE FACTS OF CIRCUMSTANCES OF THE CASE. 3. VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A)-IV K ANPUR IN THE APPELLATE ORDER EITHER INCORRECT OR ARE LEGALLY UNTENABLE. 4. THAT LD. CIT(A)-IV KANPUR WAS DUTY BOUND TO ADJU DICATE THE FOLLOWING GROUNDS AS SPECIFICALLY RAISED BEFORE HIM:- A. THAT LD. ASSESSING OFFICER HAS ERRED IN LAW AS W ELL AS ON FACTS OF THE CASE BY IMPOSING THE PENALTY OF RS. 1,50,000/- U/S 271B OF THE INCOME-TAX ACT, 1961 AND THEREFORE, PENALTY ORDER D ESERVES TO BE ANNULLED. B. THAT LD. ASSESSING OFFICER WAS CLEARLY WRONG IN IMPOSING A PENALTY ON THE ASSESSEE U/S 271B OF THE ACT AS THE APPELLANT D ULY COMPLIED WITH THE PROVISION OF SECTION 44AB OF THE INCOME-TAX AND WITHOUT APPRECIATING THE FACTS IN PROPER MANNER THE LD. ASS ESSING OFFICER PASSED PENALTY ORDER U/S 271B OF THE ACT AND, THERE FORE, PENALTY ORDER DESERVES TO BE CANCELLED. 5. THAT IT WAS NOT A FIT CASE FOR LEVY OF PENALTY O F RS. 1,50,000/- UNDER SECTION 271B WHICH DESERVES TO BE DELETED. 6. THAT THE APPELLANT RESERVES HIS RIGHT TO ADD, AM END/MODIFY THE GROUNDS OF APPEAL. (B) AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FOR ASSESSEE SUBMITTED THAT THE LD. CIT(A) DID NOT DECIDE ASSESSEES APPEALS ON MER ITS. HE FURTHER SUBMITTED THAT THE ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 13 OF 18 ASSESSMENT ORDERS HAVE BEEN QUASHED BY SEPARATE ORD ER DATED 31.03.2015, IN THE CASE OF SHRI MANOJ KUMAR JAIN PASSED BY LD. CIT(A), GAZI ABAD. HE ALSO SUBMITTED THAT THE ASSESSMENT ORDERS HAVE BEEN QUASHED BY INCOME TAX A PPELLATE TRIBUNAL (ITAT FOR SHORT) VIDE ORDER DATED 08.02.2019 IN THE CASE OF S HRI PANKAJ SHARMA. THE LD. COUNSEL FOR ASSESSEE ALSO REFERRED TO THE ORDER OF HONBLE SUPREME COURT OF INDIA, IN THE CASE OF COMMISSIONER OF INCOME TAX VS. JAI LAXMI RICE MILLS REPORTED AT (2015) 379 ITR 0521 (SC). THE LD. COUNSEL FOR ASSESSEE FILED A COPY OF ORDER OF CO-ORDINATE BENCH OF ITAT, DELHI, IN THE CASE OF SHRI AJAY SHARMA VS. DCIT ORD ER DATED 27.04.2018 FOR THE PROPOSITION THAT, THE LD. CIT(A) SHOULD HAVE DISPOS ED OFF THE APPEALS ON MERIT. ONE OF US (LD. JUDICIAL MEMBER) IS A PARTY TO THE AFORESAI D ORDER DATED 27.04.2018 IN THE CASE OF SHRI AJAY SHARMA. THE LD. COUNSEL FOR ASSESSEE A LSO FILED A COPY OF CONSOLIDATED ORDER DATED 01/06/2018 OF CO-ORDINATE BENCH OF ITAT , DELHI, IN THE CASES OF VISHNU BHAGWAN VS. DCIT AND PANKAJ SHARMA VS. DCIT, FOR TH E PROPOSITION THAT, THE LD. CIT(A) IS REQUIRED TO PASS ORDERS ON MERITS GIVING REASONS FOR HIS DECISION IN THE APPELLATE ORDER. ON THE OTHER HAND, THE LD. DEPARTMENTAL REP RESENTATIVE (DR, FOR SHORT) SUBMITTED THAT ADVERSE VIEW SHOULD BE TAKEN AGAINST THE ASSESSEES BECAUSE THE ASSESSEES DID NOT APPEAR BEFORE THE LD. CIT(A). (C) WE HAVE HEARD BOTH SIDES ATTENTIVELY AND WE HAV E ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD CAREFULLY. WE HAVE ALSO CONSID ERED JUDICIAL PRECEDENTS BROUGHT TO OUR NOTICE OR REFERRED TO IN THE RECORDS OF THE ITA T. WE ARE AWARE OF THE DECISION IN THE CASE OF MS. SWATI PAWA VS. DCIT (2019) 175 ITD 0622 (DELHI-TRIB.) / (2019) 55 ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 14 OF 18 CCH 0512 DELTRIB / [2019] 103 TAXMANN.COM 300 (DELH ITRIB.) IN WHICH, ON THE SIMILAR ISSUE, IT WAS HELD AS UNDER: (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 WRITING 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 FUR THER OBLIGED TO STATE THE REASONS FOR HER DECISION ON EACH SUCH POINTS WHICH AROSE FOR DETERMINATION. THE LD. CIT(A) IS DUTY BOUND TO DISPOSE OF THE APPEAL T HROUGH A SPEAKING ORDER ON MERITS , ON ALL THE POINTS WHICH AROSE FOR DETERMINATION IN THE APPELLATE PROCEEDINGS, INCLUDING ON ALL THE GROUNDS OF APPEAL. MOREOVER, THE PERUSAL OF SECTION 251(1)(A) AND (B) OF I.T. AC T AND THE FURTHER PERUSAL OF EXPLANATION OF SECTION 251(2) OF I.T. ACT SHOWS THAT THE LD. CIT(A) IS REQUIRED TO APPLY HER MIND TO ALL THE ISSUES WHICH ARISE FRO M THE IMPUGNED ORDER BEFORE HER, WHETHER OR NOT THESE ISSUES HAVE BEEN R AISED BY THE ASSESSEE BEFORE HER . IF THE ORDER OF LD. CIT(A) ON MERITS IS A SUMMARY ORDER; AS WE HAVE HELD IN FOREGOING PARAGRAPH (3) OF THIS ORDER; IT AMOUNTS TO NON-APPLICATION OF MIND. THIS NON-APPLICATION OF M IND IS A CONTRAVENTION OF STATUTORY ROLE OF LD. CIT(A) U/S 2 51(2) OF I.T. ACT. ALSO, SECTION 251(1)(A) OF I.T. ACT PROVIDES THAT W HILE DISPOSING OF AN APPEAL AGAINST ASSESSMENT ORDER, COMMISSIONER (APPEALS) SH ALL 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 CANCEL SUCH O RDERS OR VARY IT SO AS TO EITHER TO ENHANCE OR TO REDUCE THE PENALTY. IF THE ORDER OF THE LD. CIT(A) ON MERITS IS A SUMMARY ORDER; AS WE HAVE HELD IN THE F OREGOING PARAGRAPH (3) OF THIS ORDER; IT AMOUNTS TO NON-APPLICATION OF MIND TO THE POSSIBILITIES OF REDUCING / ENHANCING / ANNULLING T HE ASSESSMENT, OR CANCELLING / VARYING THE PENALTY, AS THE CASE MAY B E. THIS NON- APPLICATIONS OF MIND IS A CONTRAVENTION OF STATUTOR Y ROLE OF LD. CIT(A) U/S 251(1)(A) OR 251(1)(B) OF I.T. ACT, AS THE CASE MAY BE. ON CUMULATIVE CONSIDERATION OF THE PROVISIONS U/S 250( 6) READ WITH SECTIONS 250(4), 250(5), 251(1)(A), 251(1)(B) AND EXPLANATION OF SECT ION 251(2) OF I.T. ACT , WE COME TO THE CONCLUSION THAT THE LD. CIT(A) IS NOT EMPOWERED TO DISMISS THE APPEAL FOR NON-PROSECUTION OF APPEAL AND IS OBL IGED TO DISPOSE OF THE APPEAL ON MERITS. (4.2) ONCE THE ASSESSEE FILES AN APPEAL U/S 246A OF I.T. ACT, THE ASSESSEE SETS IN MOTION THE MACHINERY DESIGNED FOR DISPOSAL OF THE APPEAL UNDER SECTIONS 250 AND 251 OF I.T. ACT. IF THE APPEAL FILED BY THE ASSESSEE FULFILS THE REQUIREMENTS OF MAINTAINAB ILITY AND ADMISSIBILITY PRESCRIBED UNDER SECTIONS 246, 246A, 248 AND 249 OF I.T. ACT; NEITHER THE ASSESSEE CAN STOP THE FURTHER WORK ING OF THAT ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 15 OF 18 MACHINERY AS A MATTER OF RIGHT, BY WITHDRAWING THE APPEAL, OR BY NOT PRESSING THE APPEAL, OR BY NON-PROSECUTION OF THE A PPEAL; NOR THE FIRST APPELLATE AUTHORITY, CIT(A) IN THIS CASE, CAN HALT THIS MACHINERY BY IGNORING EITHER THE PROCEDURE IN APPEAL PRESCRIBED U/S 250 OF I.T. ACT OR POWERS OF COMMISSIONER (APPEALS) PRESCRIBED U/S 251 OF I.T ACT. CIT(A). THE FIRST APPELLATE AUTHORITY CANNOT DISMIS S ASSESSEES APPEAL ON MERITS, IN A SUMMARY MANNER, WITHOUT DECIDING TH E APPEAL ON MERITS THROUGH AN ORDER IN WRITING, STATING THE POI NTS 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-TERMI NUS 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 A N 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 COURTS DECISION S 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 I F THE ASSESSEE REFUSES TO APPEAR AT THE HEARING, THE FIRST APPELLATE AUTHORIT Y CAN PROCEED WITH THE ENQUIRY AND IF HE FINDS THAT THERE HAS BEEN AN UNDER-ASSESS MENT, 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, BY ANALOGY, NOT OPEN FO R LD. CIT(A) TO NOT PASS ORDER ON MERITS ON ACCOUNT OF NON-PROSECUTION OF APPEAL BY THE ASSESSEE OR IF THE ASSESSEE SEEKS TO WITHDRAW THE A PPEAL OR IF THE ASSESSEE DOES NOT PRESS THE APPEAL. WHEN THE COMMISSIONER (APPEALS) DISMISSES THE APPEAL OF ASSESSEE FOR NON-PROSECUTIO N OF APPEAL BY THE ASSESSEE; IN EFFECT, INDIRECTLY IT LEADS TO SAME RESULTS AS W ITHDRAWAL OF APPEAL BY ASSESSEE. WHEN THE ASSESSEE IS NOT PERMITTED TO WITHDRAW THE APPEAL FILED BEFORE THE FIRST APPELLATE AUTHORITY, THE FIRST APPELLATE AUTHORITY IS DUTY BOUND TO NOT ALLOW A SITUATION TO ARISE, THROUGH DISMISSA L OF APPEAL IN A SUMMARY MANNER; IN WHICH, IN EFFECT, INDIRECTLY TH E SAME RESULTS ARE OBTAINED AS ARISE FROM WITHDRAWAL OF APPEAL BY THE ASSESSEE. WHAT CANNOT BE PERMITTED IN LAW TO BE DONE DIRECTLY, CAN NOT BE PERMITTED TO BE DONE INDIRECTLY EITHER. IN VIEW OF THE FOREGOING DISCUSSION; AND ON CAREF UL PERUSAL OF SECTION 250(6) R.W.S. 250(4), 250(5), 25 1(1)(A), 251(1)(B) AND EXPLANATION TO SECTION 251(2) OF I.T. ACT; IT IS AMP LY CLEAR THAT LD. CIT(A) HAS NO POWER TO DISMISS APPEAL IN LIMINE FOR NON-PROSECUTI ON OF APPEAL BY THE ASSESSEE. WE DRAW SUPPORT FROM ORDER OF HONBLE BOMBAY HIGH C OURT IN THE CASE OF CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) [2016] 240 TAXM AN 133 FOR THE PROPOSITIONS THAT LD. CIT(A) IS REQUIRED TO APPLY H IS MIND TO ALL ISSUES WHICH ARISE FROM IMPUGNED ORDER BEFORE HIM WHETHER OR NOT SAME HAD BEEN RAISED BY ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 16 OF 18 APPELLANT BEFORE HIM; AND THAT 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 INQU IRY THAT HE THINKS FIT OR DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPOR T 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 TH E 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 PROVI DE THAT WHILE DISPOSING OF APPEAL THE CIT(A) WOULD HAVE THE POWER TO CONFIRM, REDUCE, ENH ANCE 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, T HE CIT(A) WOULD BE ENTITLED TO CONSIDER AND DECIDE ANY ISSUE ARISING IN THE PROCEE DINGS 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 TH E APPEAL. IN FACT THE CIT(A) IS OBLIGED TO DISPOSE OF THE APPEAL ON MERITS. IN FACT WITH EF FECT 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 O F 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 H AS BEEN RAISED BY THE APPELLANT BEFORE HIM. ACCORDINGLY, THE LAW DOES NOT EMPOWER T HE CIT(A) TO DISMISS THE APPEAL FOR NON-PROSECUTION AS IS EVIDENT FROM THE PROVISIONS O F THE ACT. (5) WHETHER THE ASSESSEE ATTENDED THE APPELLATE PROCEED INGS BEFORE THE LD. CIT(A), OR NOT; WHETHER THE ASSESSEE COMPLIED WITH THE NOTICES OF THE LD. CIT(A)OR NOT; WHETHER THE ASSESS EE PARTICIPATED IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) OR NOT; WHETHER THE ASSESSEE COMPLIED WITH THE DIRECTIONS OF THE LD. CIT(A) OR NOT; PROVISIONS OF SECTION 250(6) AND SECTION 251 OF I.T . ACT CONTINUE TO HAVE APPLICATION; AND THE LD. CIT(A) CANNOT DISREGA RD HER STATUTORY ROLE UNDER THESE PROVISIONS . THUS, THE DISCUSSION IN THE FOREGOING PARAGRAPHS (4), (4.1) AND (4.2) OF THIS ORDER HAVE RELEVANCE EVEN IN A CASE, LIKE THE CASE BEFORE US, IN WHICH THE ASSESSEE NEIT HER ATTENDED THE HEARINGS BEFORE THE LD. CIT(A) NOR FILED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) AND SHOWED INDIFFERENT APPROACH, LEADING THE LD. CIT(A) TO PASS EX-PARTE ORDER ON THE GROUND OF NON-APPEARANCE OF THE APPELLANT. ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 17 OF 18 (C.1) FOLLOWING THE AFORESAID PRECEDENTS IN THE CAS ES OF SHRI AJAY SHARMA (SUPRA), SHRI VISHNU BHAGWAN (SUPRA), SHRI PANKAJ SHARMA (SUPRA) AND MS. SWATI PAWA (SUPRA); WE SET ASIDE THE ORDERS OF THE LD. CIT(A) AND REMAND T HE ISSUES IN DISPUTE TO THE LD. CIT(A) FOR FRESH ORDERS ON MERITS. THE LD. CIT(A) IS DIRECTED TO CONSIDER AFORESAID ORDER DATED 08.02.2019 IN THE CASE OF PANKAJ SHARMA AND ORDER DATED 31.03.2015 IN THE CASE OF MANOJ KUMAR JAIN AND IN THE CASE OF CIT VS. JAI LAXMI RICE MILLS (SUPRA). THE LD. CIT(A) IS ALSO DIRECTED TO PROVIDE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE AND TO ALSO, OPPORTUNITY MAKE SUBMISSIONS, BEFORE H E PASSES THE FRESH ORDERS. (D) FOR STATISTICAL PURPOSES ALL THE APPEALS ARE TR EATED AS PARTLY ALLOWED. THE ORDER WAS ALREADY PRONOUNCED ORALLY IN THE OPEN COURT ON 04.06.2019 AFTER CONCLUSION OF THE HEARING. SD/- SD/- (K.N. CHARY) (ANADEE NATH MISSH RA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04.06.2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.2531/DEL/2016 AND OTHER APPEALS. SH. VISHNU BHAGWAN, SH. PANKAJ SHARMA AND SH. MANOJ KUMAR JAIN PAGE 18 OF 18 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 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