Venkat Rao immani, CHENNAI V. ITO, CHENNAI

ITA 1152/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95849 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: B S PU RSHOTHAM

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO.1152/MDS/2015 ' #$' / ASSESSMENT YEAR : 2008-09 SHRI VENKAT RAO IMMANI, C/O SH. B.S. PURSHOTHAM, CHARTERED ACCOUNTANT, 23-A, NORTH BOAG ROAD, 3 RD FLOOR, 3D PIONEER HOMES, T. NAGAR, CHENNAI - 600 017. PAN : AABPI 2571 B V. THE INCOME TAX OFFICER, CORPORATE WARD 3(4), CHENNAI - 600 034. (&'/ APPELLANT) (()&'/ RESPONDENT) &' * + / APPELLANT BY : SH. B.S. PURSHOTHAM, CA ()&' * + / RESPONDENT BY : SH. P. RADHAKRISHNAN, JCIT , # * -. / DATE OF HEARING : 10.07.2015 /0$ * -. / DATE OF PRONOUNCEMENT : 07.08.2015 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS).-11, CHENN AI, DATED 20.03.2015 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2 I.T.A. NO.1152/MDS/15 2. SH. B.S. PURSHOTHAM, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE CIT(APPEALS) DISMISSED THE APPEAL FOR NON-PROSECUTION BY FOLLOWING THE ORDER OF DELHI BEN CH OF THIS TRIBUNAL IN CIT V. MULTIPLAN (INDIA) PVT. LTD. 38 I TD 320. ACCORDING TO THE LD. REPRESENTATIVE, THE CIT(APPEALS) OUGHT T O HAVE DISPOSED THE APPEAL ON MERIT INSTEAD OF DISMISSING THE SAME FOR NON- PROSECUTION. THEREFORE, THE LD. REPRESENTATIVE SUB MITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PRESENT ALL THE FACTS BEFORE THE CIT(APPEALS) SO AS TO ENABLE HIM TO DISP OSE THE SAME ON MERIT. 3. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED INTEREST ON THE BORROWED FUNDS AGAINST THE RENTAL INCOME. ACCORDIN G TO THE LD. D.R., THE ASSESSEE HAS SHOWN A MEAGRE RENTAL INCOME WITH AN INTENTION OF SETTING OF THE LOSS AGAINST THE SALARY AND OTHER INCOME. THEREFORE, THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE. ACCORDING TO THE LD. D.R., THE PROPERTY IS UNDER SE LF-OCCUPATION AND THE ASSESSEE HAS NOT PAID ANY RENT FOR SELF-OCCUPAT ION. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. ON MERIT, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF INTEREST ON THE BOR ROWED FUNDS 3 I.T.A. NO.1152/MDS/15 AGAINST THE INCOME. ON APPEAL, THE CIT(APPEALS) WI THOUT ADJUDICATING THE MATTER ON APPEAL, REJECTED THE APP EAL ON THE GROUND THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM. THE CIT(APPEALS) PLACED HIS RELIANCE ON THE DECISION OF THIS TRIBUNAL IN MULTIPLAN (INDIA) PVT. LTD. (SUPRA). IN THE CASE O F MULTIPLAN (INDIA) PVT. LTD. (SUPRA), THE DELHI BENCH OF THE TRIBUNAL FOUND THAT THERE WAS DEFECT IN THE APPEAL AND THE SAME WAS NOT RECTI FIED. THEREFORE, THE DELHI BENCH REJECTED THE ASSESSEES APPEAL AS U NADMITTED. IN THE CASE BEFORE ME, IT IS NOT THE CASE THAT THERE W AS ANY DEFECT IN THE APPEAL AND THE SAME WAS NOT RECTIFIED. THEREFO RE, THE CIT(APPEALS) IS NOT CORRECT IN PLACING RELIANCE ON THE DECISION OF THE DELHI BENCH OF THIS TRIBUNAL IN MULTIPLAN (INDIA) P VT. LTD. (SUPRA). 5. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) BEING A SENIOR MOST OFFICER, IS EXPECT ED TO ADJUDICATE THE APPEAL ON MERIT AFTER CALLING FOR RECORD FROM T HE ASSESSING OFFICER IRRESPECTIVE OF THE APPEARANCE OF THE ASSES SEE BEFORE HIM. WHAT IS REQUIRED TO THE CIT(APPEALS) IS TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO APPEAR BEFORE HIM BY ISSUING A NOTICE. IF THE ASSESSEE HAS NOT APPEARED OR CHOSEN TO AVAIL THE OPPORTUNITY GIVEN BY THE CIT(APPEALS), THEN IT IS OPEN TO THE CIT(APPEALS) A LWAYS TO PASS AN ORDER ON MERIT. HOWEVER, DISMISSING THE APPEAL FOR NON-PROSECUTION 4 I.T.A. NO.1152/MDS/15 BY A STATUTORY AUTHORITY MAY NOT BE CORRECT. THERE FORE, THE ORDER OF THE CIT(APPEALS) IS SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO HIS FILE. THE CIT(APPEALS) SHALL CONSIDER THE ISSUE ON MERIT AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. I T IS MADE CLEAR THAT IN CASE THE ASSESSEE FAILS TO APPEAR BEFORE HI M, IT IS UPTO HIM TO CALL FOR RECORD FROM THE ASSESSING OFFICER AND DECI DE THE SAME ON MERIT IN ACCORDANCE WITH LAW. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED ON 7 TH AUGUST, 2015 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED, THE 7 TH AUGUST, 2015. KRI. * (-34 54$- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 6- () /CIT(A)-11, CHENNAI-34 4. , 6- /CIT, CHENNAI-3, CHENNAI 5. 4#7 (- /DR 6. 8' 9 /GF.