RAMKRISHNA CINE EXHIBITORS, PUNE V. PNE CIRCLE 2 PUNE, PUNE

ITA 768/PUN/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 5608 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 18-08-2024
• Assessment Year: misc
• Appeal Filed On: 11-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR KESHARI
• Assessee Lawyers: MANDAR S. KHIRE
• Keywords: Business income; Set aside; Capital Gains
• Section: 142(1); 251; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.768/PUN/2024 Assessment Year : 2017-18 Ramkrishna Cine Exhibitors, C/o. Mangala Multiplex, 101, Shivajinagar, Pune 411 005 Maharashtra PAN : AALFR4229F Vs. The Assessing Officer, Circle-2, Pune Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the appellant directed against the order of National Faceless Appeal Centre, Delhi dated 06.03.2024 for the Assessment Year 2017-18. 2. Briefly the facts of the care are as under : The appellant is a firm engaged in the business of Construction. It filed the Return of Income for the A.Y. 2017-18 on 30.10.2017 disclosing total income of Rs.11,25,19,270/-. Subsequently, the return was revised declaring total income of Rs.8,17,47,990/-. The case was selected for Scrutiny through Computer Assisted Scrutiny Selection (CASS). Statutory notices u/s.143(2) and 142(1) were issued to the Assessee by : Shri Mandar S. Khire and Shri S.V. Deshpande Revenue by : Shri Ajay Kumar Keshari Date of hearing : 19.08.2024 Date of pronouncement : 19.08.2024 ITA No. 768/PUN/2024 2 appellant. The appellant in response to show cause notice dated 23.11.2019 submitted certain details vide its letter dated 05.12.2019. Against the said return of income, the AO vide order dated 27.12.2019 passed u/s.143(3) completed the assessment at a total income of Rs.14,87,23,540/-. While doing so, the AO computed the total income of the appellant as under : S.No. Particulars Amount Rs. Amount Rs. I Income from Business 64,78,857 Add. 1. Sale proceeds treated as business income instead of LTCG as per para 4 2,57,28,128 2. Sundry creditors as per para 5 4,92,17,750 3. Increase in the cost of construction as per para 6 1,63,82,146 9,13,28,024 Business Income 9,78,06,881 II Long Term Capital Gains as per para 4 5,09,16,658 Total income 14,87,23,539 Rounded off to 14,87,23,540 3. Being aggrieved, the appellant preferred appeal before the CIT(A)/NFAC who vide impugned order dismissed the appeal in limine, without going into the merits of the issues. 4. Being aggrieved, the appellant is in appeal before the Tribunal. 5. The ld. Authorised Representative submits that despite seeking time for compliance the CIT(A)/NFAC did not chose to grant sufficient time to the appellant, dismissed the appeal in limine. Therefore, in the interest of justice, the matter may be remanded to the file of CIT(A)/NFAC for denovo adjudication of the issues on merits. 6. On the other hand, the ld. DR submits that appellant was given ample opportunities for submitting its response, which it failed to do so. ITA No. 768/PUN/2024 3 The CIT(A)/NFAC had rightly dismissed the appeal. Therefore, no interference by this Tribunal is called for. 7. We heard the rival submissions and perused the material on record. On mere perusal of para no.5 of the impugned order, it would reveal that the appellant sought adjournment. However, we find the CIT(A)/NFAC had dismissed the appeal of the appellant in limine without going into the merits of the issues. Further, it is a trite law that the CIT(A)/NFAC should have dealt with the merits of the issues in appeal, even in the case of ex-parte order. From the perusal of the impugned order, it would reveal that the CIT(A)/NFAC had not gone into the merits of the issues in appeal, merely dismissed the appeal for non-prosecution, which is contrary to the settled position of law. The Hon’ble Bombay High Court in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay) has held 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 a ssessee 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. Infact the CIT(A) is obliged to dispose of the appeal on merits. Infact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of ITA No. 768/PUN/2024 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. 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. Considering the entirety of the facts and circumstances, we are of the considered opinion that it is a fit case for remand of the matter to the file of the CIT(A)/NFAC for de novo consideration in accordance with law after affording due opportunity of hearing to the assessee. 8. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced on this 19 th day of August, 2024. Sd/- Sd/- (VINAY BHAMORE) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; दनांक / Dated : 19 th August, 2024. Satish ITA No. 768/PUN/2024 5 आदेश क ितिलिप अ ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / The Appellant. 2. यथ / The Respondent. 3. The Pr. CIT concerned 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “B” ब च, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाड फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.