PRAKASH RAMESH SHARMA, NAGPUR V. INCOME TAX OFFICER, WARD 4(5), NAGPUR

ITA 382/NAG/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8480 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 14-11-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY Y. MARATHE
• Keywords: Principle of natural justice
• Section: 143(3); 250; 251; 246A

Judgement Text

।आयकर अपीलीय अिधकरण Ɋायपीठ नागपुर मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH : : NAGPUR [VIRTUAL HEARING AT PUNE] BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.382/NAG/2022 िनधाᭅरण वषᭅ / Assessment Year : 2014-15 Prakash Ramesh Sharma, Plot No.69, PMG Society, Behind Ganesh Mandir, Narendra Nagar, Nagpur. Maharashtra – 440015. PAN: AVOPS5603A V s The Income Tax Officer, Ward-4(5), Nagpur. Appellant/ Assessee Respondent/Revenue Assessee by None. Revenue by Shri Abhay Y. Marathe – Sr.DR Date of hearing 27/02/2024 Date of pronouncement 28/02/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee against the order of ld.Commissioner of Income Tax(Appeals)[NFAC], under section 250 of the Income Tax Act, 1961 dated 15.09.2022 emanating from the order under section 143(3) of the Act, 1961 dated 28.12.2016. The grounds of appeal raised by the Assessee are as under : ITA No.382/NAG/2022 Prakash Ramesh Sharma [A] 2 “1. The order passed by Hon'ble CIT(A] is illegal invalid and bad in law. The Hon'ble CIT(A) erred in sustaining the action of the Ld. AO on total additions of Rs. 60,07,500/- is incorrect, unjustifiable, excessive and should be quashed. 2. The Hon'ble CIT(A] erred in law and on facts in dismissing the appeal of the appellant. That on facts and in law, the Hon'ble CIT (A) ought to have decided the appeal on merits instead of dismissing the appeal for non-attendance 3. That the Hon'ble CIT(A) erred in law and on facts by sustaining the additions made by Ld. AO as detailed under: [a] Addition u/s.56(2](vii](b][ii)-Rs.39,44,000/- [b] Addition u/s.56(2][vii)(b](ii) - Rs.20,63,500/- Total addition Rs.60,07,500/- 4. The above grounds of appeal are without prejudice and notwithstanding each other. Any consequential relief, which the appellant may be entitled under the law in pursuance of the aforesaid grounds of appeal, or otherwise, may thus be granted. The appellant craves leave to add to or alter, by deletion, substitution or otherwise, any or all of the above grounds of appeal and the factual and legal arguments against the addition by the Ld.CIT(A)/ Ld. AO at the time or before the course of appellate proceedings in the interest of natural justice.” 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.Departmental Representative for the Revenue and perused the records. On perusal of the order of ITA No.382/NAG/2022 Prakash Ramesh Sharma [A] 3 the ld.CIT(A)[NFAC] it is observed that ld.CIT(A) has dismissed the appeal without discussing merits, as assessee failed to file submission in response to notices issued by ld.CIT(A).The ld.CIT(A) has decided this case as under : 4.1 In this case, ld.CIT(A) has dismissed the appeal of the assessee for non-prosecution. In this case, order of ld.CIT(A) contains only four sentences. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits. 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 : ITA No.382/NAG/2022 Prakash Ramesh Sharma [A] 4 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 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 ITA No.382/NAG/2022 Prakash Ramesh Sharma [A] 5 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 CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non- prosecution. 6. In view of this, 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. 7. Accordingly, appeal of the assessee in ITA No.382/NAG/2022 is allowed for statistical purpose. Order pronounced in the open Court on 28 th February, 2024. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 28 th Feb, 2024/ SGR* ITA No.382/NAG/2022 Prakash Ramesh Sharma [A] 6 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, नागपुर बᱶच, नागपुर/ DR, ITAT, Bench, Nagpur. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.