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Pawan Kumar Singhal, 157, Chanderpuri, Ghaziabad- 201001, Vs. ACIT, Circle -2, Ghaziabad.
July, 15th 2019
             IN THE INCOME TAX APPELLATE TRIBUNAL
                  (DELHI BENCH: `F': NEW DELHI)

      BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER
                         AND
   SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER

                           ITA No:- 1005/Del/2019
                         (Assessment Year: 2015-16)

   Pawan Kumar Singhal,             ACIT,
   157, Chanderpuri, Ghaziabad- Vs. Circle -2,
   201001,                          Ghaziabad.
   U.P.
   PAN No:     ADNPK1527C
   APPELLANT                        RESPONDENT

             Assessee by            : Shri Raj Kumar, CA
             Revenue by             : Shri Surender Pal, Sr. DR

                                     ORDER

PER ANADEE NATH MISSHRA, AM


      This appeal by Assessee is filed against the order of Learned Commissioner of Income

Tax (Appeals)-I, ["Ld. CIT(A)", for short], Noida ­ 201301, dated 28.09.2018 for Assessment

Year 2015-16.


      " 1.   That under the facts and circumstances Ld. CIT(A) erred in law on merits in
      deciding the appeal ex-parte only after issuing notice of hearing for 19.09.18, for which
      adjournment application stood filed and noted by the CIT(A), however neither
      adjournment application rejected, nor any further date given and also no communication
      informing the fate of the adjournment application communicated to appellant, thus, no
      proper and reasonable opportunity of hearing has been allowed by CIT(A).
                                                                           ITA No. 1005/Del/2019.
                                                                             Pawan Kumar Singhal.

      2.     That the Ld. CIT(A) further erred in not admitting the appeal by mentioning that
      the asstt. order, demand notice and challan for fee was no filed, although, impugned
      order and demand notice were duly uploaded and the details of challan and payment
      were feeded in item No. 16 of Form-35 in the absence of which, Form-35 could not had
      been uploaded.
      2.1     That without prejudice, when appeal stand filed in time, without issuing a
      deficiency notice for want of assessment order, demand notice and copy of challan, the
      appeal cannot be dismissed as un-admitted.
      3.     That under the facts and circumstances Ld. CIT(A) erred in not adjudicating the
      appeal on merits.
      4.     That under the facts and circumstances of Ld. AO erred in law and on merits in
      not accepting the declared LTCG of Rs. 2,89,99,096/- on sale of shares of M/s Esteem Bio
      Organic Food Processing Ltd. and in not allowing the exemption claimed u/s.10 (38) and
      in making addition of Rs. 2,91,49,846/- u/s.68 for the total amt. of sale consideration
      received on sale of shares.
      4.1     That the findings of AO are unsustainable for addition of Rs. 2,91,49,846/- in the
      absence of providing the copies of all materials used against the assessee and by not
      providing cross­examination of persons whose statements have been relied upon, thus
      no proper and reasonable opportunity of hearing has been allowed and principles of
      natural justice is grossly violated which makes the impugned asstt. unsustainable in law.
      5.      That there is no basis and material to justify the findings of AO for addition of Rs.
      8,74,496/- u/s. 69C as alleged unexplained commission exp. @3% of LTCG. The Ld. AO
      also erred in calculating 3% on total sale proceeds against findings of 3% on LTCG amt.
      6.      The AO erred in law in charging tax on addition of RS. 2,91,49,846/- at the
      special rate u/s. 115BBE."




(2)   The Assessment Order U/s 143(3) of the Income Tax Act, 1961 ("I.T. Act" for

short) was passed on 27/12/2017, in which the total income was assessed at

Rs.3,27,56,502/- as under:


      Total income returned:                               Rs. 27,59,160/-

       1.   Addition u/s 68 read with section Rs. 2,91,49,846/-
            115BE
       2.   Addition U/s 69C                  Rs. 8,47,496/-
       3.   Assessed total income             Rs. 3,27,56,502/-


                                          Page 2 of 15
                                                                                       ITA No. 1005/Del/2019.
                                                                                         Pawan Kumar Singhal.


(3)   The Assessee filed appeal before the Ld. CIT(A). We find from the perusal of

record, that the following grounds of appeal were raised by the Assessee before the Ld.

CIT(A):-


           1.   That the Asstt. framed U/s. 143 (3) at an income of Rs.3,27,56,500/- against returned
                at Rs.27,59,160/- is unsustainable in law as well as on merits.
           2.   That the impugned asstt. is without jurisdiction, hence illegal and unsustainable in law.
           3.   That under the facts and circumstances the Ld, A.O. erred in law and on merits in not
            accepting the declared LTCG of Rs.2,89,99,096/- on sale of shares of M/s Esteem Bio
            Organic Food Processing Ltd. and in not allowing the exemption claimed u/s. 10 (38) and
            in making addition of Rs.2,91,49,846/- u/s.68 for the total amt. of sale   consideration
            received on sale of shares.
           4.    That the findings of A.O. are unsustainable for addition of Rs.2,91,49,846/- in the
            absence of providing the copies of all materials used against the assessee and by not
            providing cross- examination of persons whose statements have been relied upon, thus no
            proper and reasonable opportunity of hearing has been allowed and principles of natural
            justice is grossly violated which makes the impugned asstt. unsustainable in law.
           5.   That there is no basis and material to justify the findings of A.O. for addition of
            Rs.8,74,496/- u/s.69C as alleged unexplained commission exp. @3% of LTCG. The Ld
            A.O. also erred in calculating 3% on total sale proceeds against findings of 3% on LTCG
            amt.
           6.    The A.O. erred in law in charging tax on addition of Rs.2,91,49,846/- at the special rate
            u/s. l 15BBE.

           7.   That the interest u/s.234A/B/C has been wrongly charged. In any case it is highly
            excessive."

(3.1) The Ld.CIT(A) dismissed the Assessee's appeal with the following observations in

his aforesaid impugned order dated 28/09/2018:


              The present appeal has been filed by the appellant against an assessment
       order dated 27.12.2017 passed by the Ld. AO u/s 143(3) of I.T. Act, 1961 on a total
       income of Rs. 1,38,84,900/- against the return of income not available from the record
       of this office as the appellant has not filed the impugned assessment order despite
       repeated opportunities allowed by this office. The said assessment order not placed
       on record of this office has been impugned in the present appeal and is being
       contested by the appellant on the grounds of jurisdiction as well as merit.

       2.      Pursuant to the notice issued by this office requiring the appellant to file the copy
       of the impugned assessment order, demand notice and the challan for payment of fee,
       a letter was received from Shri Aman Gupta, CA stating that the written submission and

                                                 Page 3 of 15
                                                                                   ITA No. 1005/Del/2019.
                                                                                     Pawan Kumar Singhal.

         paper book was under preparation and compilation of necessary papers was required
         to prepare the appeal which was received from earlier counsel and therefore, the case
         was required to be adjourned.

         3.      It is not understood what is the nexus between filing of statutory documents
         mandatory for admitting the appeal and preparation of paper book or other such details.
         The impugned assessment order was received by the appellant on 27.12.2017 and the
         subject appeal has been filed on 10.01.2018 and therefore, the appellant has more than
         8 months to prepare whatever it considered to be necessary for its case. In any case no
         hearing has been held by this office and no detail has been called for. It is therefore
         clear that the appellant is raising infructuous grounds to avoid appearing before this
         office.

         4.     As the appeal of the appellant cannot be admitted without compliance of Section
         249(1 )(a) of I.T. Act, 1961 and without having the impugned assessment order on the
         record and the appellant has chosen not to place the same on the record of this office
         despite the opportunity having been allowed, the appeal of the appellant is not
         maintainable and is dismissed. The impugned assessment order stands confirmed."









(3.2) On perusal of the order of the Ld.CIT(A), therefore, it is found that he has

dismissed the assessee's appeal by holding it non-maintainable on the grounds that the

impugned assessment order was not placed on record by the assessee; and that

demand notice and challan for payment of appeal fee in compliance of section 249 had

not been placed on record by the assessee.


(3.3) Aggrieved by the order of the CIT(A), the Assessee is now in appeal before

Income Tax Appellate Tribunal ("ITAT", for short). During appellate proceedings in

ITAT, the Ld. Authorized Representative ("AR", for short) for assessee filed synopsis,

relevant portion of which is as under:

 G.N. 1
"APPEAL DECIDED EX-PARTE ON VERY FIRST DATE
         st
      - 1 Notice issued for hearing on 19.09.18.
     -    Adjournment application filed in dak on 19.09.18 on instructions of CIT(A), who discussed the same
          in Para-2 of CIT (A) order.                                                                  (1)
     -    No communication from CIT(A) rejecting the adjournment application


                                               Page 4 of 15
                                                                                         ITA No. 1005/Del/2019.
                                                                                           Pawan Kumar Singhal.

       -    The reasons mentioned in the adjournment application wrongly rejected vide Para- 3 of CIT(A)
            order.
            -     CIT(A) has passed ex-parte order without giving any reasonable opportunity of hearing.


G.N.2
NON - ADMISSION OF APPEAL BY CIT(A) FOR NON COMPLIANCE OF SEC.249

       -    Sec.249 has been fully complied with.
       -    Appeal e-filed in time.

       -    CIT(A) held that provisions of Sec.249 not complied with vide Para-4 of CIT(A) order for not filing
            the asstt. order

       -    The asstt. order was duly filed with e-filed appeal                                            (5)
       -    Further all other documents namely details of challan, demand notice, challan, and other
            attachments were e-filed with appeal                                                          (2-6)

                 - Details of challan also filled up in Form-35 without which appeal cannot be e-filed.
                   (3)
            -     Also, form-35 could not be uploaded without attachments.

            -     Hence, the appeal was correctly filled and was liable to be admitted by CIT(A).

            -    Further. Sec.249 nowhere provides that even alleged non filing of asstt. order, will make the
            appeal non admissible.
            -     Hence, the appeal not admitted for non compliance of Sec.249 is also contrary
            -     Covered by ITAT order in case of Akasnha Singhal wherein same CIT(A) vide similar
            order dismissed the appeal, which stood set aside by Hon'ble ITAT to CIT(A) vide ITA No.
            820/Del/2019, order dtd. 23.04.2019."




(4.)        At the time of hearing before us, the Ld.AR for the assessee reiterated the

submissions as per the aforesaid synopsis mentioned in foregoing paragraph (3.3.1) of

this order. He also referred to the order of co-ordinate Bench of ITAT in the case of

Akansha Singhal vs. DCIT in ITA No.- 820/Del/2019 order dated 23.04.2019, copy of

which has been furnished on record. He drew our particular attention to the following

portion of aforesaid order in the case of Akansha Singhal vs DCIT(Supra):-


           3. After considering the rival submissions, we are of the view that the matter requires
           reconsideration at the level of the Ld. CIT(A). Learned Counsel for the Assessee submitted
           that it was the first date of hearing of the appeal, on which, no adjournment has been

                                                    Page 5 of 15
                                                                                ITA No. 1005/Del/2019.
                                                                                  Pawan Kumar Singhal.

      granted to the assessee. Therefore, no proper opportunity of hearing of the appeal have
      been granted. He has further submitted that it is appeal against the quantum assessment
      order.

       However, the Ld. CIT(A) has wrongly mentioned in the impugned order that impugned
      penalty order is not available on the website of the department. He has referred to electronic
      appeal filed with Ld. CIT(A), in which, details of the challan have been mentioned and in the
      annexures, copy of the demand along with order appealed, have been filed with the O/o.
      CIT(A). These facts clearly show that there was no fault attributable to the assessee in filing
      the relevant documents along with the appeal papers. The Ld. CIT(A) on the very first date of
      hearing of the appeal proceeded ex-parte without giving proper opportunity to the assessee
      to prepare the case. The request for adjournment in writing was made seeking only 20 days
      time. These facts clearly show that impugned order is wholly unjustified and is liable to be
      set aside. The Ld. CIT(A) did not give reasonable, sufficient opportunity of being heard to the
      assessee.

       3.1. In view of the above, we set aside the impugned order and restore the appeal of
      assessee to the file of the Ld. CIT(A)-1, Noida, with a direction to re-decide the appeal of
      assessee on merits strictly as per Law, by giving reasonable, sufficient opportunity of being
      heard to the assessee."

(4.1) At the time of hearing before us, the Learned AR of the assessee made a prayer

for setting aside the order of the Ld.CIT(A) with the direction to Ld.CIT(A) to pass fresh

order on admissibility and maintainability of the appeal; and also on merits in respect of

grounds of appeal raised by the assessee in appeal before the Ld.CIT(A).                       The Ld.

Departmental Representative ("DR", for short) did not express any objection to this

prayer of the assessee. The Ld. DR also did not dispute or controvert the facts claimed

and submissions made from assessee's side in the synopsis referred to in the foregoing

paragraph (3.3.1) of this order.




                                             Page 6 of 15
                                                                               ITA No. 1005/Del/2019.
                                                                                 Pawan Kumar Singhal.

(4.1.1) We have heard both sides patiently.                We have also carefully perused the

materials on record. The relevant provisions under I.T. Act regarding maintainability of

appeal made to Commissioner (Appeals) and regarding procedure in appeal, and

powers of the Commissioner [Appeals] are contained in Sections 249, 250 and 251 of

I.T. Act, which are reproduced below for ready reference:


     "249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be
     verified in the prescribed manner and shall, in case of an appeal made to the
     Commissioner (Appeals) on or after the 1st day of October, 1998, irrespective of the date
     of initiation of the assessment proceedings relating thereto be accompanied by a fee of,--
       (i) where the total income of the assessee as computed by the Assessing Officer in
     the case to which the appeal relates is one hundred thousand rupees or less, two
     hundred fifty rupees;
      (ii) where the total income of the assessee, computed as aforesaid, in the case to
     which the appeal relates is more than one hundred thousand rupees but not more
     than two hundred thousand rupees, five hundred rupees;
     (iii) where the total income of the assessee, computed as aforesaid, in the case to
     which the appeal relates is more than two hundred thousand rupees, one thousand
     rupees;
     (iv) where the subject matter of an appeal is not covered under clauses (i), (ii) and
     (iii), two hundred fifty rupees.
     (2) The appeal shall be presented within thirty days of the following date, that is to
     say,--
      (a) where the appeal is under section 248, the date of payment of the tax, or
      (b) where the appeal relates to any assessment or penalty, the date of service of
     the notice of demand relating to the assessment or penalty:
     Provided that, where an application has been made under section 146 for
     reopening an assessment, the period from the date on which the application is
     made to the date on which the order passed on the application is served on the
     assessee shall be excluded :
     Provided further that where an application has been made under sub-section (1)
     of section 270AA, the period beginning from the date on which the application is
     made, to the date on which the order rejecting the application is served on the
     assessee, shall be excluded, or
      (c) in any other case, the date on which intimation of the order sought to be
     appealed against is served.
     (2A) Notwithstanding anything contained in sub-section (2), where an order has
     been made under section 201 on or after the 1st day of October, 1998 but before

                                            Page 7 of 15
                                                                      ITA No. 1005/Del/2019.
                                                                        Pawan Kumar Singhal.

the 1st day of June, 2000 and the assessee in default has not presented any appeal
within the time specified in that sub-section, he may present such appeal before the
1st day of July, 2000.
(3) The Commissioner (Appeals) may admit an appeal after the expiration of the
said period if he is satisfied that the appellant had sufficient cause for not
presenting it within that period.
(4) No appeal under this Chapter shall be admitted unless at the time of filing of
the appeal,--
 (a) where a return has been filed by the assessee, the assessee has paid the tax
due on the income returned by him; or
 (b) where no return has been filed by the assessee, the assessee has paid an
amount equal to the amount of advance tax which was payable by him:
Provided that, in a case falling under clause (b) and on an application made by the
appellant in this behalf, the Commissioner (Appeals) may, for any good and
sufficient reason to be recorded in writing, exempt him from the operation of the
provisions of that clause.

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 the 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 authorized 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.
(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) The Commissioner (Appeals) may, at the hearing of an appeal, allow the
appellant to go into any ground of appeal not specified in the grounds of appeal, if
the Commissioner (Appeals) is satisfied that the omission of that ground from the
form of appeal was not wilful or unreasonable.
(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) 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.
                                     Page 8 of 15
                                                                           ITA No. 1005/Del/2019.
                                                                             Pawan Kumar Singhal.



       251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the
      following powers--
      (a) In appeal against an order of assessment, may confirm, reduce, enhance or
          annual the assessment
      (aa) In appeal against the order of assessment in respect of which the proceeding
      before the Settlement Commission abates under section 245HA, he may, after
      taking into consideration all the material and other 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 proceeding 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 penalty, 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 the 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 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." Se
      More

(4.1.2.) Ld.CIT(A) dismissed assessee's appeal by holding that the assessee had not

complied with section 249 of I.T.Act. However, perusal of foregoing paragraphs (3.3),

(4) and (4.1) shows that the assessee denied these allegations in written submissions

as per synopsis,    as well as through oral submissions at the time of hearing; and

further, that the facts claimed and submissions made in these written as well as oral

submissions made on behalf of the assessee have not been neither disputed nor

controverted by the Learned DR. Thus, the assessee's claim that the assessment order,

details of challan etc., were e-filed with the appeal; is neither disputed nor controverted

by Revenue.

                                          Page 9 of 15
                                                                    ITA No. 1005/Del/2019.
                                                                      Pawan Kumar Singhal.

(4.2) Further, a perusal of the statutory provisions reproduced already in foregoing

paragraph (4.1.1), shows that 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 further obliged to state the reasons for his decision on each such points which

arose for determination. Thus, the Ld. CIT(A) was duty bound to dispose of the appeal

on merits. Moreover, the perusal of Section 251(1)(a) and (b) of I.T. Act and the

further perusal of Explanation to 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 or not these issues had been raised by the Assessee before him.

Also, Section 251(1)(a) of I.T. Act provides that while disposing of an appeal against

Assessment Order, 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 cancel such orders or vary it so as to either to enhance or to reduce the

penalty.   On cumulative 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 conclusion 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 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


                                      Page 10 of 15
                                                                    ITA No. 1005/Del/2019.
                                                                      Pawan Kumar Singhal.

fulfils the requirements of maintainability and admissibility prescribed under

Sections 246, 246A, 248 and 249 of I.T. Act; neither the Assessee can stop

the further working of that machinery as a matter of right by withdrawing

the appeal, or by not pressing the appeal, or by non-prosecution of the

appeal; 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 dismiss assessee's appeal in

limine for non- prosecution without deciding the appeal on merits through an

order in writing, stating the points 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-terminus 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 an 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 Court's 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, cannot withdraw it and even if the assessee refuses to appear at the

hearing, the first 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







                                      Page 11 of 15
                                                                   ITA No. 1005/Del/2019.
                                                                     Pawan Kumar Singhal.

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

for 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 appeal or if

the assessee does not press the appeal. When the Commissioner (Appeals)

dismisses the appeal of assessee for non-prosecution of appeal by the assessee; in

effect, indirectly 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

appellate authority, the first appellate authority is duty bound to not allow a

situation to arise, through dismissal of appeal for non-prosecution of appeal

before the first appellate authority; in which, in effect, indirectly the same

results are obtained as arise from withdrawal of appeal by the assessee.

What 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 careful perusal of Section 250(6) r.w.s. 250(4), 250(5), 251(1)(a), 251(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 assessee. We

draw support from order of Hon'ble 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 impugned

order before him whether or not same had been raised by appellant before him; and


                                     Page 12 of 15
                                                                             ITA No. 1005/Del/2019.
                                                                               Pawan Kumar Singhal.

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 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."



(5)      As already noted in foregoing paragraph (4.1) of this order, the Ld.DR did not

express any objection to the prayer made on behalf of the assessee for setting aside

the order of the Ld. CIT(A) with a direction to Ld.CIT(A) to pass fresh order. In view of

the foregoing; we set aside the impugned order of the Ld.CIT(A) and restore the matter

to the file of the Ld.CIT(A) with the direction to pass fresh order on admissibility and

maintainability of the appeal filed by the assessee before the Ld.CIT(A), after giving

                                            Page 13 of 15
                                                                     ITA No. 1005/Del/2019.
                                                                       Pawan Kumar Singhal.

due consideration to e-filed documents and other attachments submitted by the

assessee at the time of e-filing of appeal. We expressly hold that e-filed documents and

other attachments, as well as other information submitted by the assessee at the time

of e-filing of appeal before the Ld.CIT(A) must be treated as part of the record of the

Ld.CIT(A) and must receive proper consideration at the end of the Ld. CIT(A). If the

Ld.CIT(A) is satisfied about admissibility and maintainability of the appeal filed by the

assessee before the Ld.CIT(A); then the Ld.CIT(A) is further directed to pass order on

merits; stating the points for determination; the decision thereon, and reasons for the

decision. Needless to say, the Ld.CIT(A) is required to adhere to principles of natural

justice as well as to statutory provisions before he passes fresh order(s) as directed

herein above; with particular reference to sections 249, 250 and 251 of the I.T.Act

reproduced already in foregoing paragraph (4.1.1) of this order.


(6)   For statistical purposes, the appeal of the assessee is partly allowed.


      Order pronounced in the open court on 12th day of July, 2019.


       Sd/-                                                      Sd/-
  (KULDIP SINGH)                                      (ANADEE NATH MISSHRA)
  JUDICIAL MEMBER                                      ACCOUNTANT MEMBER
Dated: 12.07.2019
Pooja/-
Copy forwarded to:
  1. Appellant
  2. Respondent
  3. CIT
  4. CIT(Appeals)
  5. DR: ITAT
                                                        ASSISTANT REGISTRAR
                                                              ITAT NEW DELHI

                                      Page 14 of 15
                                                     ITA No. 1005/Del/2019.
                                                       Pawan Kumar Singhal.




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




                                Page 15 of 15

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