The Bombay High Court has held that once an appeal is filed before the CIT(A), it is not open to the assessee to withdraw it, just as it is not open to the CIT(A) to dismiss it for non-prosecution. The appeal must be disposed of by a decision under section 251(1). That has direct consequences for anyone planning to abandon a pending appeal.
The reasoning is structural. Section 250(6) obliges the Commissioner (Appeals) to state the points for determination and give reasons; section 251(1)(a) and (b) confine him to confirming, reducing, enhancing or annulling; and the Explanation to section 251(2) requires him to apply his mind to all issues arising out of the order before him, whether or not the appellant raised them. Because the statute commands adjudication rather than mere disposal, the Bombay High Court held that it is not open to the assessee in appeal to withdraw, and not open to the CIT(A) to dismiss the appeal for non-prosecution. The first appeal, once invoked, is not the assessee's property to abandon. In practice this bites in three situations. Where a dispute-resolution or settlement route requires that no appeal be pending, filing a withdrawal request and assuming it takes effect is unsafe - the correct course is to check what the scheme itself provides, since such schemes usually deem a pending appeal to be withdrawn on issue of the relevant certificate. Where an assessee wants to drop a weak ground, the answer is to give up the ground and say so, not to withdraw the appeal. And where an assessee stops participating hoping the appeal will lapse, the result is an ex parte order on merits which then binds. The practical risk of a live appeal is enhancement: the CIT(A) can go up as well as down, subject to the new-source limit.
How wide are the first appellate authority's powers when it disposes of an appeal?
The assessing officer accepted my method of accounting. Can the first appellate authority reject it for the first time in my own appeal and enhance the assessment?
The first appellate authority has enhanced my assessment using items the Assessing Officer never looked at. Can it do that, or has it gone beyond its jurisdiction?
Can the CIT(A) use the enhancement power to tax a source of income the Assessing Officer never examined?
Can an appellate authority under the Income-tax Act throw out an appeal because the appellant did not turn up?
Can the first appellate authority tax a source of income the officer never looked at?
Can you raise a ground before the CIT(A) that you never raised before the officer?
The assessing officer ignored my partition claim and assessed the family anyway. If the Tribunal finds that illegal, can it simply cancel the assessment and stop there?
Every page in this library links to what it was written from, so you can check it rather than take our word for it.
