G.V.Nithyanandham, CHENNAI V. ITO, CHENNAI

ITA 1111/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96084 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO.1111/MDS/2014 ' #$' / ASSESSMENT YEAR : 2009-10 SHRI G.V. NITHYANANDHAM, NO.1, SANNATHY STREET, THIRUVANMIYUR, CHENNAI - 600 034 PAN : ABSPN 6111 E V. THE INCOME TAX OFFICER, BUSINESS WARD IV(1), CHENNAI - 600 034. (&'/ APPELLANT) (()&'/ RESPONDENT) &' * + / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ()&' * + / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT , # * -. / DATE OF HEARING : 21.08.2015 /0$ * -. / DATE OF PRONOUNCEMENT : 04.09.2015 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, CHENNAI , DATED 30.10.2013 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2 I.T.A. NO.1111/MDS/14 2. THERE WAS A DELAY OF 122 DAYS IN FILING THIS APP EAL BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CO NDONATION OF DELAY. I HAVE HEARD THE LD. REPRESENTATIVE AND THE LD. D.R. I FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, I CONDONE THE DELAY AN D ADMIT THE APPEAL. 3. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT WITH REGARD TO THE ADDITION OF ` 10,55,950/-, THE ASSESSING OFFICER, BY TAKING THE FIGURE FROM THE BALANCE SHEE T, FOUND THAT THE CLAIM OF ADVANCES FROM CUSTOMERS IS NOT SUBSTANTIAT ED WITH DOCUMENTARY EVIDENCE. THE CIT(APPEALS) WITHOUT GOI NG INTO THE MERIT OF THE CASE, CONFIRMED THE ADDITION ON THE GR OUND THAT THERE WAS NO RESPONSE FROM THE REPRESENTATIVE OF THE ASSE SSEE. SIMILARLY, THE ADDITION MADE BY THE ASSESSING OFFIC ER TO THE EXTENT OF ` 19,273/- WAS ALSO CONFIRMED BY THE CIT(APPEALS) WIT HOUT RE- APPRECIATING THE MATERIAL AVAILABLE ON RECORD, SIMP LY FOR THE REASON THAT THE REPRESENTATIVE OF THE ASSESSEE DID NOT APP EAR BEFORE HIM. ACCORDING TO THE LD. COUNSEL, MERELY BECAUSE THE AS SESSEES REPRESENTATIVE DID NOT APPEAR BEFORE THE CIT(APPEAL S), HE CANNOT CONFIRM THE ADDITION WITHOUT RE-APPRECIATING THE MA TERIAL AVAILABLE ON RECORD. ACCORDING TO THE LD. COUNSEL, THE CIT(A PPEALS) IS 3 I.T.A. NO.1111/MDS/14 EXPECTED TO DISPOSE OF THE APPEAL ON MERIT ON THE B ASIS OF THE MATERIAL AVAILABLE ON RECORD, IRRESPECTIVE OF THE F ACT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE BEING A LITIGANT CANNOT BE PE NALIZED FOR THE OMISSION OF HIS REPRESENTATIVE TO APPEAR BEFORE THE CIT(APPEALS). THEREFORE, THE LD.COUNSEL SUBMITTED THAT AN OPPORTU NITY MAY BE GIVEN TO THE ASSESSEE TO PLACE THE MERIT OF THE CAS E BEFORE THE CIT(APPEALS). 4. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE CIT(APPEALS) HAD POSTED THE APPEALS ON VARIOUS DATES. ACCORDING TO THE LD. D.R ., THE CASE WAS ORIGINALLY POSTED ON 03.10.2012 AND IT WAS ADJOURNE D TO 15.10.2012 AND AGAIN ADJOURNED TO 15.11.2012 AND 26.11.2012. THE ASSESSEE DID NOT APPEAR ON ANY OF THESE POSTINGS. THEREFORE , IT WAS ADJOURNED TO 01.03.2013 AND THEREAFTER TO 29.10.201 3. FINALLY, THE CIT(APPEALS) PASSED THE ORDER ON 30.10.2013. THUS, THE CIT(APPEALS) PROVIDED ADEQUATE OPPORTUNITY TO THE A SSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE CIT(A PPEALS), AFTER EXTRACTING THE GROUNDS OF APPEAL AND THE FACTS OF T HE CASE, 4 I.T.A. NO.1111/MDS/14 CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFIC ER ON THE GROUND THAT THE ASSESSEE FAILED TO APPEAR BEFORE HI M. THE CIT(APPEALS), BEING A STATUTORY AUTHORITY, EMPOWERE D TO DISPOSE OF THE APPEAL ARISING OUT OF THE ORDER OF THE ASSESSIN G OFFICER AND HAVING THE POWER OF COTERMINOUS WITH THAT OF THE AS SESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS TO EXAMINE THE MATTER AFTER RE-APPRECIATING THE MAT ERIAL AVAILABLE ON RECORD IRRESPECTIVE OF THE FACT WHETHER THE ASSESSE E APPEARED BEFORE HIM OR NOT. THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE POWER GIVEN TO THE CIT(APPEALS) TO ENHANCE THE ASSESSMENT CANNOT BE SO LIGHTLY DEALT WITH BY SIMPLY REJECTING THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FAILED TO APPEAR BEFORE HIM. IF THE CIT(APPEALS) RE-APPRECIATES THE MATERI AL AVAILABLE ON RECORD AND THEN EXERCISES HIS COTERMINOUS POWER CON FERRED ON HIM UNDER THE INCOME-TAX ACT, THERE MAY BE A NECESSITY TO INCREASE THE ASSESSMENT MADE BY THE ASSESSING OFFICER. THEREFOR E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT( APPEALS) HAS FAILED TO EXERCISE HIS STATUTORY POWER CONFERRED ON HIM UNDER THE INCOME-TAX ACT, BY RE-APPRECIATING THE MATERIAL AVA ILABLE ON RECORD. AS RIGHTLY CONTENDED BY THE LD.COUNSEL FOR THE ASSE SSEE, EVEN IF THE REPRESENTATIVE FAILED TO APPEAR BEFORE HIM, THE ASS ESSEE, BEING A 5 I.T.A. NO.1111/MDS/14 LITIGANT CANNOT BE PENALIZED FOR THE OMISSION OF HI S REPRESENTATIVE TO APPEAR BEFORE THE CIT(APPEALS). THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT ONE MORE OPPORTUNITY CAN BE GIVEN TO T HE ASSESSEE TO PRESENT THE MATERIAL FACTS BEFORE THE CIT(APPEALS) SO AS TO ENABLE THE CIT(APPEALS) TO RE-APPRECIATE THE MATTER ON MER IT. BY GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE, THE INTEREST OF THE REVENUE WILL NOT BE PREJUDICED IN ANY WAY. THIS TRIBUNAL I S OF THE CONSIDERED OPINION THAT GIVING ONE MORE OPPORTUNITY TO THE ASS ESSEE WOULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE. 6. IN VIEW OF THE ABOVE DISCUSSION, THE ORDER OF TH E LOWER AUTHORITY IS SET ASIDE AND THE ISSUE IS RESTORED ON THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) SHALL DECIDE THE MA TTER AFRESH ON MERIT AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THAT EVEN IF THE ASSESSEE FAILS TO APPEA R BEFORE CIT(A), THE CIT(APPEALS) IS BOUND TO CALL FOR RECORDS FROM THE ASSESSING OFFICER AND RE-APPRECIATE THE MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ISSUE ON MERIT WITHOUT BEING INFLUENCED BY ANY OF HIS OBSERVATION MADE IN THE IMPUGNED ORDER OR BY THIS TRIBUNAL IN THIS ORDER. 6 I.T.A. NO.1111/MDS/14 7. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 4 TH SEPTEMBER, 2015 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED, THE 4 TH SEPTEMBER, 2015. KRI. * (-34 54$- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 6- () /CIT(A)-V, CHENNAI 4. , 6- /CIT-X, CHENNAI-34 5. 4#7 (- /DR 6. 8' 9 /GF.