JERMEL'S ACCADEMY,SILIGURI V. I.T.O., WARD - 1(4), SILIGURI, SILIGURI

ITA 992/KOL/2024

AI Insights

Jermel's Academy, a trust running an educational institution, appealed against the orders of the CIT(A) which had dismissed their earlier appeals on grounds of non-compliance and lack of substantiating evidence for tax exemptions claimed under sections 11 and 12 of the Income Tax Act. The Tribunal noted procedural lapses in the handling of the appeals, including non-application of mind by the CIT(A) and failure to provide a reasoned decision as required under section 250(6) of the Act. The Tribunal also considered the impact of demonetization on cash deposits made by the trust, which were treated as unexplained money under section 69A of the Act.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 36223 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Other Referred Cases: CIT vs. M/s. Infinity Infotech Parks Ltd., Chuharmal Vs CIT, Smt. Srilekha Banerjee and Others Vs CIT, Bihar & Orissa, Ajji Basha Vs. CIT, Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ALLOWING; ALLOWING
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Competent authority
• Section: 147; 142(1); 250; 251; 139(1); 133(6); 13; 69A; 139; 12; 191; 10B; 10(23C); 246A

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'ए' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA श्री प्रदीप क ुमार चौबे, न्याधयक सदस्य एवं श्री राक ेश धमश्र, लेखा सदस्य क े समक्ष Before SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. Nos.: 992, 993 & 994/KOL/2024 Assessment Years: 2014-15, 2015-16 & 2017-18 Jermel's Accademy Vs. I.T.O., Ward -1(4), Siliguri (Appellant) (Respondent) PAN: AABTJ0525C Appearances: Assessee represented by : Siddarth Agarwal, Adv. Department represented by : Sailen Samadder, Add. CIT, Sr. D.R. Date of concluding the hearing : January 13th, 2025 Date of pronouncing the order : January 21st, 2025 ORDER PER BENCH: These appeals filed by the assessee are against the separate orders of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as “the Ld. CIT(A)”] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AYs 2014-15, 2015-16 & 2017-18. Since the appeals were heard together, they are being decided vide this common order for the sake of convenience and brevity. Page | 2 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 2 of 15 2. As regards the appeal for AY 2017-18, there is a delay of 217 days. The assessee has submitted an application for condonation of delay along with an affidavit. The affidavit reads as under: “I, Salim John Sadiq, son of Riyaz Nasim Sadiq, aged 49 years, by religion Christian, working for the gain at 52, Rashbehari Sarani, Siliguri, Darjiling - 734001, do hereby solemnly affirm and state as follows - 1. That I am the trustee of Trust, Jermel’s Academy (hereinafter referred to as assessee). As such, I am competent to swear this affidavit on behalf of the said concern. 2. That two appeals were filed before the CIT(A), NF AC on 27.04.2022 against the assessment order dated 28.03.2022 for the AY: 2014-15 and 2015-16. Another appeal was also filed relating to AY: 2017-18 on 21.01.2020 against an assessment order dated 26.12.2019. However, all the appeals were dismissed by the CIT(A) by passing exparte orders on the ground of non-compliance from the end of the assessee. 3. That the assessee trust was run and administered by the Board of Trustees who have little knowledge of the Income Tax. 4. That the assessee unaware of all the notices issued during the course of the appellate proceedings, since the same were served to the email of the ex- accountant, Sri Prabir Maitra, who had filed appeal on behalf of the assessee and no notices/order were served physically. 5. That the said Sri Prabir Maitra was no more working for the assessee trust at the relevant time and did not inform the trustees about the fixation of hearing. 6. That or around the last week of March, 2024 when the undersigned accessed the income tax portal, then it was found that exparte order for the AY: 2014-15, 2015-16 and 2017-18 had already passed by the Ld. CIT(A). 7. That on or around the 18th April 2024, the assessee contacted Sri Siddharth Agarwal, Advocate of Kolkata and sought an appointment for the discussion of the matter. 8. That then, on advice of the said counsel, all the appeals were prepared and deposited on 03.05.2024 before the Hon’ble Tribunal. 9. That there is delay of around 217 days in filing the appeal relevant to AY: 2017-18. Page | 3 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 3 of 15 10. That I give an undertaking that proper compliance shall be made in case the abovementioned case is restored back to the lower authorities by the Hon’ble Tribunal. 11. That the facts stated in para 1 to 10 are true to the best of my knowledge and belief and paragraph 11 is an undertaking by me.” 2.1. Considering the application for condonation of delay as well as the affidavit and the reasons stated therein, we are satisfied that the assessee had reasonable and sufficient cause and was prevented from filing the instant appeal within the statutory time limit. We, therefore, condone the delay and admit the appeal for A.Y. 2017-18 also for adjudication on merits. 3. The assessee has taken the following grounds of appeal: AY 2014-15: “1. For that on the facts and in the circumstances of the case, Id. CIT(A) was not justified in passing an ex-parte order. 2. For that oh the facts and in the circumstances of the case, Ld. CIT(A) was not justified in denying the exemption of Rs. 3,28,53,862/- claimed by the assessee u/s 11(1). 3. Without prejudice to the above grounds, the Ld. CIT(A) ought to have directed the A.O. to determine the correct income of the assessee by allowing the expenditure incurred relating to the income earned and tax the remaining surplus only. 4. For that the appellant craves leave to add, alter or delete all or any of the grounds of appeal.” AY 2015-16: “1. For that on the facts and in the circumstances of the case, Ld. CIT(A) was not justified in passing an ex-parte order. 2. For that on the facts and in the circumstances of the case, Ld. CIT(A) was not justified in denying the exemption of Rs. 3,66,87,4717- claimed by the assessee u/s 11(1). 3. Without prejudice to the above grounds, the Ld. CIT(A) ought to have directed the A.O. to determine the correct income of the assessee by allowing Page | 4 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 4 of 15 the expenditure incurred relating to the income earned and tax the remaining surplus only. 4. For that the appellant craves leave to add, alter or delete all or any of the grounds of appeal.” AY 2017-18: “1. For that on the facts and in the circumstances of the case, Ld. CIT(A) was not justified in passing an ex-parte order. 2. For that on the facts and in the circumstances of the case, Ld. CIT(A) ought to have allowed the exemption claimed by the assessee u/s 11(1) and 12 of the Income Tax Act, if any. 3. For that on the facts and in the circumstances of the case, Ld. CIT(A) was not justified in confirming the addition of Rs. 50,14,820/- made by the A.O on account of cash - deposits in bank accounts during the demonetization period by wrongly treating the same as unexplained money u/s 69A of the Act. 4. For that the appellant craves leave to add, alter or delete all or any of the grounds of appeal.” 3.1. The assessee has taken additional grounds of appeal which are as under: AY 2014-15: “a) For that the assessment order dated 28.03.2022 is void and nullity in the eye of law as there are no recorded reasons to belief that income chargeable to tax has escaped assessment. b) Without prejudice to ground no. a stated above, the recorded reasons are invalid and improper and as such, the re- assessment framed vide order dated 28.03.2022 is bad in the eye of law. c) For that there was no sanction or the purported sanction u/s 151 was not in accordance with law, thus, vitiating the re-opening process.” AY 2017-18: “a) For that the assessment order dated 28.03.2022 is void and nullity in the eye of law as there are no recorded reasons to belief that income chargeable to tax has escaped assessment. Page | 5 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 5 of 15 b) Without prejudice to ground no. a stated above, the recorded reasons are invalid and improper and as such, the re- assessment framed vide order dated 28.03.2022 is bad in the eye of law. c) For that there was no sanction or the purported sanction u/s 151 was not in accordance with law, thus, vitiating the re-opening process.” 4. Brief facts of the case as applicable for A.Y. 20104-15 are that the assessee is a Trust which runs a co-educational school for secondary level education and is affiliated to the Central Board of Secondary education (C.B.S.E.). The basis of reopening the assessment was the information available with the department that the assessee had made cash deposits amounting to Rs. 1,39,87,262/- and, therefore, the proceedings u/s 147 of the Act were initiated after issuing notice u/s 148 of the Act and the assessee filed the return of income declaring ‘NIL’ income in response to the notice issued. The total fees collection for the relevant year was Rs. 3,31,78,875/- and the entire receipts had been claimed to have been accounted for in the account maintained by the Trust. The Assessing Officer (hereinafter referred to as ld. 'AO') noticed that the assessee had claimed exemption u/s 11(1)(A) of the Act for Rs. 3,28,53,862/- and asked it to furnish the documentary evidence that the Trust was eligible for exemption u/s 11(1)(A) of the Act. The assessee stated that the exemption is allowable in view of the second proviso to section 12A(2) of the Act and a copy of the order for provisional registration dated 30.08.2021 for A.Y. 2022-23 to A.Y. 2024-25, was filed. The Ld. AO again required the assessee to furnish the evidence for the exemption claimed and since the assessee had neither filed the return of income as per the provision of section 139(1) of the Act for claiming the exemption nor any documentary evidence was filed, therefore, the exemption claimed by the assessee was disallowed. Aggrieved with the assessment order, the assessee filed an appeal before Page | 6 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 6 of 15 the Ld. CIT(A) who issued several notices of hearing to file the submission but the assessee failed to comply with the notices issued. In para 9 of the appeal order, the Ld. CIT(A) has concluded that the assessee had no evidence to substantiate the grounds taken and had not even argued with any supporting, relevant and cogent arguments/averments and the appeal was decided on the basis of the extremely brief non-speaking submission appearing in the grounds of appeal and the statement of facts filed along with the impugned appeal. The Ld. CIT(A) in para 10.1 has held that the assessee stated that it is a Trust running educational institution and had obtained registration u/s 12AB on 30.08.2021 but did not file any proof for the same. Before the Ld. AO it was stated that the source of cash deposits in bank accounts are the fees collected from students during the year amounting to Rs. 3,31,78,875/-. Since the assessee had neither identified its status by furnishing Registration Certificate issued u/s 12A/12AA during the scrutiny/appellate proceedings nor had claimed exemption u/s 11 or any other provision of the Act by filing its ITR and only a copy of provisional registration dated 30.08.2021 which is from AY 2022-23 to AY 2024-25 was filed and did not furnish any documentary evidence that the application for grant of exemption was pending with the competent authority nor the claim of exemption u/s 11(1)(A) was filed, therefore, the claim was not allowed. The Ld. CIT(A) has also referred to the provisions of sub-clause (iiiad) & (vi) of clause 23C of section 10 and has held that the assessee is not eligible to get the benefit under those sub-clauses as no exemption certificate issued vide Rule 2CA of the Income-tax Rules, 1962 was filed during the course of the scrutiny proceedings. Further as per sub-section (4C) of section 139 of the Act, every educational institution referred to in sub-clause Page | 7 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 7 of 15 (iiiab), (iiiad), (vi) of Section 10(23C) whose total income, without giving effect to the provisions of section 10, exceeds the maximum amount which is not chargeable to income-tax is liable to furnish a return of such income of the previous year and since no return of income was filed therefore, the ground of appeal was dismissed and the exemption claimed by the assessee was denied. The assessee had failed to file books of accounts, therefore, relying upon the decision of Hon’ble Supreme Court in the case of Calcutta Discount Co [41 ITR 191 (SC.)] the other ground of appeal was also dismissed and the appeal was dismissed. 5. During the course of the appeal proceeding, the assessee relied upon the case of CIT vs. M/s. Infinity Infotech Parks Ltd. dated 10.09.2024 in support of the claim that when the income relating to the subject matter of reopening was not added, the re-assessment proceeding is bad in law. It was requested that since proper submission could not be made before the Ld. CIT(A), another opportunity of being heard before the Ld. CIT(A) so that the assessee can make adequate submission. The Ld. DR relied upon the order of the Ld. CIT(A). 6. We have considered the matter and find that the assessee did not make any submission and the appeal was decided on the basis of the facts mentioned in the appeal memo. Before us the balance sheet of Jermel's Accademy as well as the income and expenditure showing various receipts have been filed which were neither filed before the Ld. AO nor even before the Ld. CIT(A). Hence, in the interest of justice and fair play to both the parties, the order of the Ld. CIT(A) for A.Y. 2014-15 is set aside to be done de novo. The assessee shall be at liberty to file the required evidence for the relief claimed. Page | 8 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 8 of 15 7. As regards AY 2015-16, the facts of the case are similar and in view of the finding in AY 2014-15, the order of the Ld. CIT(A) is set aside to be done de novo in accordance with the direction given for AY 2014- 15. 7.1. After examining the facts of the case, we deem it appropriate to set aside the order of the Ld. CIT(A) and remit the matter back to the Ld. CIT(A) for disposal of the grounds taken by the assessee on merit, by passing a speaking order. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of its grounds of appeal and shall not seek unnecessary adjournments and rule 46A of the I.T. Rules, 1962 shall also be followed by the Ld. CIT(A) , if required. Accordingly, the grounds taken by the assessee in his appeal are allowed for statistical purposes. 8. As regards AY 2017-18, the notice u/s 142(1) of the Act was not complied with. Notice u/s 133(6) of the Act was issued to the concerned banks seeking bank statement for the relevant period and cash deposit of Rs. 50,14,820/- was found to have been deposited in the three bank accounts maintained by the assessee. The assessee claimed the status of a Trust but as it had not got registration u/s 12A/12AA of the Act nor had filed any return of income along with the audit report in the prescribed Form No. 10B as required as per Rule 12(1) & 12(2) of the Rules, 1962. Hence, the exemption claimed was not allowed. Even though during the course of assessment proceedings, the assessee had furnished income and expenditure account for the year ending 31.03.2017 showing total receipt of Rs. 4,18,61,525/- in addition with bank interest amounting to Rs. 1,44,372/-, the activities of the assessee Page | 9 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 9 of 15 were treated as business instead of the activities of a non-profit making institution and the assessee was considered as an AOP in terms of the provisions of the Act. Before the Ld. CIT(A), the assessee could not succeed, who upheld the addition of Rs. 50,14,820/- on account of cash deposit during the demonetization period in the bank account maintained in the name of the assessee. Reliance was placed on the following judgments: (i) Chuharmal Vs CIT (1988) 172 ITR 250 (SC) ii) Smt. Srilekha Banerjee and Others Vs CIT, Bihar & Orissa, 1964 AIR 697 (SC) 9. The relevant extract from the order of the Ld. CIT(A) is as under: “10.3 To sum up the above, the analysis of the cash deposited and other credit added in the appellant income is as under: • The appellant failed to furnish the return of income either u/s 139 or any other provision as envisaged in the Act. • The appellant deposited cash of Rs.50,14,820/- in the bank accounts maintained by the appellant during demonetisation period. • The appellant found to be the owner of the money as established through KYC received from bank. • The income earned by the appellant is not offered for taxation purposes and taxes due thereon are not paid. • The appellant failed to offer any explanation during assessment proceedings as well as appellate proceedings, therefore, the cash deposit appearing in the bank statement remained unexplained and thus liable to be added u/s 69A of the Act. 10.4 In Ground No. 7 appellant has contested that AO’s action to treat its income as business activity instead of a non profit making institution. In the instant case, the appellant had deposits of Rs.50,14,820/- during the demonetization period in the bank account. The appellant has not filed return of income. Through statement facts filed with appeal, the appellant stated that it is an educational institution and they are not liable to file return. The assessee has neither identified its status by furnishing Page | 10 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 10 of 15 Registration Certificate issued u/s 12A/12AA during the scrutiny/appellate proceedings nor claimed exemption u/s 11 or any other provision of the Income-tax Act, 1961 by filing its ITRs. During scrutiny proceedings, the assessee was specifically was asked to furnish a copy of Registration Certificate issued u/s 12A/12AA of Income-tax Act, 1961. The assessee made response stating that trust was formed and registered in the office of the Sub- Registrar, Siliguri on 21.07.1987 for the purpose of running a Christian educational institution and Registration for the trust under Income-tax Act, 1961 was never applied; consequently, no registration certificate u/s 12A/12AA of Income-tax Act, 1961 was issued .Thus assessee neither filed ITR nor furnished Audit Report in the prescribed Form No.1OB electronically for the year under consideration which is required as per rule 12(1) & 12(2) of Income-tax Rules, 1962. Hence, the assessee is not eligible to be benefited of provision of 11 and 12 of Income-tax Act, 1961. 10.5 Further, the assessee is also not eligible to get benefit of sub-clause (iiiad) or (vi) of clause 23C of section 10 as the assessee has not furnished any Exemption Certificate issued vide Rule 2CA of Income-tax Rules, 1962 during the course of scrutiny proceedings. 10.6 Moreover by virtue of 139(4C) every educational institution referred to in subclause (iiiab) or sub-clause (iiiad) or sub-clause (vi) of Section 10(23C) whose total income, without giving effect to the provisions of section 10, exceeds the maximum amount which is not chargeable to income-tax are liable to furnish a return of such income of the previous year in the prescribed form. 10.7 Thus it is quite evident that the appellant has failed to comply with the provisions of the Act. Thus AO has correctly termed appellant’s activities as business activities and determined assessee’s status as AOP. Therefore, in the prevailing circumstances of the case, I find no infirmity in the action of the AO of adding Rs.50,14,820/- as undisclosed income. In this view of the matter, the addition of Rs.50,14,820/- as unexplained money u/s 69A by the AO is hereby upheld. Consequently, the Ground Nos. 1 to 7 are dismissed.” 10. Before us it was submitted that proper compliance could not be made as all the notices issued during the course of appellate proceedings were served on the email of the Accountant Sh. Pradip Maitra and no notice/order was served physically and the Accountant was no more working for the assessee Trust at the relevant time and did not inform the Trust about the fixation of hearing. Page | 11 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 11 of 15 11. We also note that while the Ld. CIT(A) has discussed non- compliance on the part of the assessee as the notices sent by e-mail were not complied with. In this respect, it is relevant to examine the provisions of section 250(6) which are reproduced as under: “250(6) – The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.” 12. We note that Section 250(6) of the Act casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and a decision as well as the reason for arriving at such decision. In the present case before us, the Ld. CIT(A) has not mentioned the reasons after examining the records while disposing of the appeal. The Ld. CIT(A) has neither adjudicated upon various grounds of appeal nor has passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 (Madras) it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. The relevant extract from the order is as under: “6. … The first respondent is the appellate authority. Needless to state that the Appellate Authority is also a fact finding authority and therefore, he has to consider the order of assessment on the grounds raised in the appeal and thereafter, pass a speaking order on merits and in accordance with law by giving his own reasons and findings as to whether the order of assessment can be sustained or not. In other words, the order passed by the Appellate Authority should explicitly exhibit his application of mind to the facts and circumstances and the objections raised in the grounds of appeal, also by expressing his reasons and findings in support of his conclusion. Page | 12 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 12 of 15 7. In this case, the Appellate Authority, after extracting the order of the Assessing Officer in full, has not given any other reason or finding to dismiss the appeal except by stating that he is of the considered view that the Assessing Officer's order is a self speaking order and does not call for any interference. In my considered view, such single line finding of the Appellate Authority, cannot be sustained as a proper exercise of the Appellate Authority, while disposing the appeal. Therefore, it is apparent that the order impugned in this writ petition is an outcome of total non-application of mind. Consequently, the impugned order cannot be sustained. It is further contended that before passing the order, the petitioner was not heard.” 12.1 It has also been held in the case of Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) that the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. The relevant extract is as under: “7. An appeal is filed with the CIT(A) from appealable orders listed in Section 246A of the Act. We find that the procedure in appeal before the CIT(A) and the powers of the CIT(A) are governed by Sections 250 and 251 of the Act respectively. The relevant provisions for consideration are as under:— 'Procedure in appeal 250 (1) . . . . . . . . . . . . . (2) . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . (4) The Commissioner (Appeals) may, before disposing 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 Commissioner (Appeals). (5) . . . . . . . . . . . . . . . . . . (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (6A) . . . . . . . . . . . . . . . . . . (7) . . . . . . . . . . . . . . . . . . Powers of the Commissioner (Appeals) \"Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers — Page | 13 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 13 of 15 (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment. (aa) . . . . . . . . . . . . . . . . . . (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty.\" (c) . . . . . . . . . . . . . . . . . . (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation. - In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant.' 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 co-terminus 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.” Page | 14 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 14 of 15 13. We have considered the submissions made. It is a settled principle of law that the assessee should not be penalised on account of lapses on the part of the Accountant. Therefore, in the interest of justice and fair play, we are of the considered view that the order of the Ld. CIT(A) for AY 2017-18 should be set aside to be done de novo in accordance with the directions issued given for AY 2014-15. Accordingly, after examining the facts of the case, we deem it appropriate to remit the matter back to the file of the Ld. CIT(A) for disposal of the grounds taken by the assessee on merits, by passing a speaking order. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of its grounds of appeal and shall not seek unnecessary adjournments and rule 46A of the I.T. Rules, 1962 shall be followed, wherever required. Accordingly, the grounds taken by the assessee in his appeal for A.Y. 2017-18 are also allowed for statistical purposes. 14. In the result, all the three appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open Court on 21st January, 2025. Sd/- Sd/- [Pradip Kumar Choubey] [Rakesh Mishra] Judicial Member Accountant Member Dated: 21.01.2025 Bidhan (P.S.) Page | 15 I.T.A. Nos.: 992, 993 & 994/KOL/2024 AYs: 2014-15, 2015-16 & 2017-18 Jermel's Accademy. Page 15 of 15 Copy of the order forwarded to: 1. Jermel's Accademy, C/o. Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2nd Floor, Kolkata, West Bengal, 700069. 2. I.T.O., Ward -1(4), Siliguri. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "