Case Number: ITA 35/DEL/2021
Appellant: Reliable Finance Corp. (P) Ltd, New Delhi
Respondent: ITO WARD – 21(2), New Delhi
Assessment Year: 2016-17
Case Filed On: 2021-01-19
Order Type: Final Tribunal Order
Date of Order: 2022-11-07
Pronounced On: 2022-11-07
The appeal was filed by Reliable Finance Corp. (P) Ltd (hereinafter referred to as the ‘Appellant’) against the order dated 27/09/2019 in appeal no. 10434/429/CIT(A)-7/DEL/2018-19 for the assessment year 2016-17, passed by the Commissioner of Income Tax (Appeal)-7, New Delhi (hereinafter referred to as the ‘First Appellate Authority’ or ‘Ld. F.A.A.’). The appeal arose out of the assessment order dated 27/12/2018 under Section 143(3) of the Income Tax Act, 1961, passed by ITO Ward-21(2), New Delhi (hereinafter referred to as the ‘Assessing Officer’ or ‘AO’).
The appeal was filed with an application for condoning the delay of 419 days in filing the appeal. An affidavit of the Director of the appellant company was submitted, stating that the delay was due to the lapse of the counsel and the Covid-19 pandemic. The Ld. CIT(A) had dismissed the appeal ex parte without considering the merits of the case.
The case was heard and the record was perused by the tribunal. The appeal filed by the appellant was to condone the delay in filing the appeal and to address the merits of the case which were not considered by the Ld. CIT(A) due to the ex parte dismissal.
The tribunal, comprising Sh. Shamim Yahya (Accountant Member) and Sh. Anubhav Sharma (Judicial Member), noted that the ends of justice required allowing the delay in filing the present appeal. It was emphasized that once an appeal is filed under Section 246A of the I.T. Act, the machinery for disposal of the appeal under Sections 250 and 251 of the I.T. Act is set in motion. The tribunal highlighted that the first appellate authority cannot dismiss the appeal for non-prosecution without deciding on the merits through a written order stating the points of determination, the decision, and the reasons for the decision.
The tribunal referred to the powers of the CIT(A) being co-terminous with those of the Assessing Officer, as established by the Supreme Court in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC). It was also noted that an assessee who has filed an appeal cannot withdraw it, and the first appellate authority must decide on the merits even if the assessee does not press the appeal.
The tribunal cited the Supreme Court decisions in CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 (SC) and CIT vs. B.N. Bhattachargee 118 ITR 461 (SC), stating that the first appellate authority has plenary powers in disposing of an appeal. The tribunal emphasized that what cannot be permitted directly by law cannot be done indirectly either.
The appeal was allowed for statistical purposes, and the issues were restored to the files of the Ld. CIT(A) to be decided afresh after providing an opportunity of hearing to the appellant. The tribunal ordered that the impugned order be set aside, and the case be remanded to the CIT(A) for a fresh decision on the merits.
The order was pronounced in the open court on 07th November 2022 by the members of the tribunal.
Order:
-Sd/- (SHAMIM YAHYA), ACCOUNTANT MEMBER
-Sd/- (ANUBHAV SHARMA), JUDICIAL MEMBER
Date: 07.11.2022
Copy forwarded to:
ASSISTANT REGISTRAR, ITAT, NEW DELHI
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