K.T.Kunjumon, CHENNAI V. ACIT, CHENNAI

ITA 120/CHNY/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4785 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 27-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI BEFORE SHRI N.S. SAINI, AM AND SHRI GEORGE MATHAN, J.M. .. I.T.A. NO. 120/MDS/2011 SHRI K.T. KUNJUMON 13, BUDDHA STREET KODAMBAKKAM CHENNAI 600 024. PAN : ACZPK 1724 A VS. THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE I(5) CHENNAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B. RAMAKRISHNAN DEPARTMENT BY : SHRI ANIRUDH RAI O R D E R PER N.S. SAINI, A.M :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A)-I, CHENNAI DATED 28.12.2010. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED 6 EFFECT IVE GROUNDS OF APPEAL AND THE GRIEVANCES OF THE ASSESSEE ARE AS UN DER: PAGE 2 OF 4 I.T.A. NO. 120/MDS/2011 1. THE ORDER OF THE LD. CIT(A) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND IS OPPOSED TO THE PRINCIPLES OF NATURAL JUSTICE, EQUITY AND FAIR PLAY. 2. THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEA L OF WANT OF PROSECUTION. 3. THE LD. CIT(A) HAS ERRED IN DISALLOWING OF RS. 2,05,010/- AS CLAIMED EXPENSES U/S 14A WITHOUT CONSIDERING ANY EXPLANATIONS OF THE APPELLANT. 4. THE LD. CIT(A) HAS ERRED IN ADDING OF RS. 69,93 7/- AS AGAINST THE SALES REGISTER AND SALES RETURN WITHOUT CONSIDERING ANY EXPLANATIONS OF THE APPELLANT. 5. THE LD. CIT(A) HAS ERRED IN ADDING OF RS. 1,75, 936/- AS CLOSING STOCK DIFFERENCE WITHOUT CONSIDERING THAT TH E CLOSING STOCK AS PER THE WORKING IS BASED ON SALES PRICE AND CLOSING STOCK IS AT COST. 6. THE LD. CIT(A) HAS ERRED IN DISALLOWING OF RS. 52,500/- ON THE GROUND THAT IT WAS A PROVISION WITHOUT UNDERSTANDING THAT THE APPELLANT WAS CONSISTENTLY FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND THE LIABILITY IS NOT UNASCERTAINED OR CONTINGENT IN NATU RE. PAGE 3 OF 4 I.T.A. NO. 120/MDS/2011 3. AT THE VERY OUTSET, THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE IN LIMINE FOR NON-APPEARANCE OF THE ASSESSEE ON THE DATE OF HEARI NG. THEREFORE, THE ASSESSEE SHOULD BE ALLOWED ONE MORE OPPORTUNITY TO PLEAD ITS CASE BEFORE THE LD. CIT(A). 4. THE LD. D.R. ON THE OTHER HAND, RELIED ON THE OR DER OF THE LD. CIT(A). 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL ON RECORD, WE FIND THAT IN THE INSTANT CAS E, THE LD. CIT(A) HAS OBSERVED IN THE ORDER THAT THE CASE WAS POSTED FOR HEARING ON 15.11.2010, 1.12.2010 AND 27.12.2010 AND THERE WAS NO APPEARANCE ON BEHALF OF THE ASSESSEE AND THEREFORE, HE DISMISS ED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION. WE FIND THAT THE LD. CIT(A) HAS NOT MENTIONED IN THE ORDER WHETHER THE NOTICE O F HEARING FIXING THE DATE OF HEARING AS MENTIONED IN THE LD. CIT(A) S ORDER WAS SERVED ON THE ASSESSEE. FURTHER, THE LD. CIT(A) S HOULD, IN CASE WHEN THE ASSESSEE FAILS TO APPEAR ON THE DATE OF HE ARING, DECIDE THE APPEAL OF THE ASSESSEE ON MERITS ON THE BASIS O F MATERIAL PAGE 4 OF 4 I.T.A. NO. 120/MDS/2011 AVAILABLE ON RECORD SO THAT THE ASSESSEE CAN MEET I TS CASE IN APPEAL BEFORE THE HIGHER AUTHORITY. THEREFORE, WE SET AS IDE THE ORDERS OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO HIS FIL E AND DIRECT HIM TO DECIDE THIS APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFT ER THE CONCLUSION OF HEARING ON 29 TH JUNE 2011. SD/- SD/- ((GEORGE MATHAN ) (N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 29 TH JUNE, 2011. VL COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE