Tuesday, May 6, 2014

Assessee can’t either seek withdrawal of appeal or file revision petition when appeal is pending before CIT(A)

Where an application is filed, seeking withdrawal of appeal, but no order is passed by CIT(A), appeal will remain pending and subsequent revision petition will not be maintainable. Facts: a) Scrutiny assessment was made on assessee. Thereafter, he had filed an appeal before the CIT(A). Subsequently, the assessee sent an application by post seeking withdrawal of his appeal. The application was received by the CIT(A). Thereafter, the assessee preferred revision of assessment order stating that he had already waived of his right of appeal. b) The Commissioner allowed revision by deleting part of the addition made during assessment. When a notice was issued for hearing before the CIT(A), the assessee did not appear. He sought adjournment but the CIT (A) declined the same. The CIT(A) rejected the withdrawal application of assessee. c) Further, the CIT (A) confirmed the assessment. Subsequently, the Commissioner also passed order cancelling/revoking his earlier revisional order. The aggrieved-assessee filed the instant writ. The High Court held as under: 1) There is no provision in Income-tax Act, which permits withdrawal of an appeal, once it is filed. Once party exhausts right of appeal, and the appeal is filed before appropriate appellate authority, who after receiving the same has registered it, then there is no provision in the statute permitting withdrawal thereof; 2) Mere filing of an application seeking withdrawal of appeal would not mean a deemed withdrawn unless an order is passed by appellate authority thereon. The appeal continues to remain pending even when the assessee files the application for withdrawal of an appeal; 3) The assesseee’s appeal was pending before the CIT(A) when the revision application was filed by him or when the Commissioner passed an order on revision petition. Hence, the revisional authority was barred from revising order of assessing authority by virtue of sub-section (4) of section 264; 4) Clause (a) of section 264(4) provides for a situation where assessee has not waived of his right of appeal. When appeal was filed, the right of appeal was availed of and exhausted by assessee, hence, question of waiver of right of appeal thereafter would not arise. 5) Thus, the Commissioner had committed a manifest error in exercising revisional power when assessee's appeal was pending before the CIT (A). That being so, it had rightly been recalled. Thus, the writ petition was to be dismissed. - YOGENDRA PRASAD SANTOSH KUMAR V. CIT [2014] 44 taxmann.com 299 (Allahabad)
Post a Comment