CIT(A) have no power to dismiss appeal in limine for non-prosecution – ITAT

CIT(A) have no power to dismiss appeal for non-prosecution

In a recent judgment, the ITAT Panji has held that CIT(A) does not have any power to dismiss appeal for non-prosecution.

ABCAUS Case Law Citation:
ABCAUS 4097 (2024) (06) ITAT

In the instant case, the assessee had challenged the order passed by the CIT(A) NFAC in dismissing the appeal in limine for non prosecution without adjudicating grounds of appeal.

The Tribunal observed that the CIT(A) had not decided the grounds of appeal on merit

but merely dismissed the appeal of the assessee for non-compliance. The CIT(A) had not adjudicated grounds raised by the assessee on merits.

The Tribunal observed that the Hon’ble Bombay High Court has held that 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.

The Hon’ble High Court had held that 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set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.

The Hon’ble High Court held 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.

Thus, the Hon’ble Bombay High Court had 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.

Accordingly, the Tribunal set aside the order of the CIT(A) for denovo adjudication. 

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