BYD INDIA PRIVATE LIMITED, CHENNAI V. ACIT CORPORATE CIRCLE 1(2), CHENNAI

ITA 1373/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3135 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 03-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Assessment record; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , !' #, % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER IT(TP)A NO.39/CHNY/2019 ' (' / ASSESSMENT YEAR : 2009-10 & ./ ITA NO.1373/CHNY/2019 ' (' / ASSESSMENT YEAR : 2012-13 M/S BYD INDIA PRIVATE LIMITED, (FORMERLY KNOWN AS BYD ELECTRONICS INDIA PRIVATE LTD.), DEVELOPED PLOT NO.OZ-7, SIPCOT SEZ, ORAGADAM, SRIPERUMBUDUR TALUK, CHENNAI 602 105. PAN : AADCB 0819 N V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE -1(2), THE DEPUTY COMMISSIONER OF INCOME TAX (OSD), CORPORATE RANGE 1, CHENNAI - 600 034. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SHRI R. SIVARAMAN, ADVOCATE ./,- 0 1 / RESPONDENT BY : DR. M. SRINIVASA RAO, CIT 2 0 '% / DATE OF HEARING : 04.11.2019 3#( 0 '% / DATE OF PRONOUNCEMENT : 08.11.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCOME T AX 2 IT(TP)A NO.39/CHNY/19 I.T.A. NO.1373/CHNY/19 (APPEALS) -4, CHENNAI, DATED 15.02.2019 AND PERTAIN TO ASSESSMENT YEARS 2009-10 AND 2012-13. THEREFORE, WE HEARD BOT H THE APPEALS TOGETHER AND DISPOSING THE SAME BY THIS COMMON ORDE R. 2. WHEN THE APPEALS WERE TAKEN FOR HEARING, SHRI R. SIVARAMAN, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITT ED THAT THERE WAS A DELAY OF 3 DAYS IN FILING THESE APPEALS BEFOR E THIS TRIBUNAL. THE ASSESSEE HAS FILED PETITIONS FOR CONDONATION OF DELAY. 3. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE, THIS TRIBUNAL FINDS TH AT THERE WAS A REASONABLE CAUSE IN NOT FILING THE APPEALS WITHIN T HE PRESCRIBED TIME. THEREFORE, THE DELAY OF 3 DAYS IN FILING THE APPEALS BEFORE THIS TRIBUNAL IS CONDONED AND BOTH THE APPEALS ARE ADMIT TED. 4. SHRI R. SIVARAMAN, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE CIT(APPEALS) DISMISSED THE APPEA LS FOR NON- PROSECUTION WITHOUT DISCUSSING ANYTHING ON MERIT. ACCORDING TO THE LD. COUNSEL, THE POWER OF THE CIT(APPEALS) IS COTER MINOUS TO THAT OF THE ASSESSING OFFICER. MOREOVER, THE SCHEME OF THE INCOME-TAX ACT SPECIFICALLY PROVIDES POWER TO THE CIT(APPEALS) TO ENHANCE THE ASSESSMENT. THEREFORE, ACCORDING TO THE LD. COUNSE L, THE 3 IT(TP)A NO.39/CHNY/19 I.T.A. NO.1373/CHNY/19 CIT(APPEALS) HAS NO AUTHORITY TO DISMISS THE APPEAL S FOR NON- PROSECUTION. IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT, HE IS EXPECTED TO CALL FOR RECORDS FROM THE ASSESSING OFFICER AND DISPOSE OF THE GROUNDS FI LED BY THE ASSESSEE, ON MERIT. IN THIS CASE, ACCORDING TO TH E LD. COUNSEL, SUCH AN EXERCISE WAS NOT DONE BY THE CIT(APPEALS), THEREFORE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE CIT( APPEALS). 5. WE HEARD DR. M. SRINIVASA RAO, THE LD. D.R. ALSO . THE LD. D.R. VERY FAIRLY SUBMITTED THAT THE MATTER MAY BE R EMITTED BACK TO THE FILE OF THE CIT(APPEALS) FOR DISPOSAL OF THE AP PEALS ON MERIT. 6. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSEE AND THE LD. D.R., THIS TRIBUNAL IS OF THE CONSIDERED OPINION TH AT THE CIT(APPEALS) HAS NO AUTHORITY / POWER TO DISMISS TH E APPEALS FOR NON-PROSECUTION. UNDER THE SCHEME OF THE INCOME-TA X ACT, ONEROUS RESPONSIBILITY WAS ASSIGNED TO THE CIT(APPEALS) TO ENHANCE THE ASSESSMENT IN CASE THE ASSESSING OFFICER HAS NOT AS SESSED THE INCOME OF THE ASSESSEE PROPERLY. SUCH A RESPONSIBI LITY TO ENHANCE THE ASSESSMENT CAN BE EXERCISED ONLY IF THE CIT(APP EALS) CONSIDERS THE CASE ON MERIT. 4 IT(TP)A NO.39/CHNY/19 I.T.A. NO.1373/CHNY/19 7. THERE MAY BE VARIOUS REASONS FOR THE ASSESSEE FO R NOT APPEARING BEFORE THE CIT(APPEALS) WHEN THE APPEALS WERE TAKEN UP FOR HEARING. ONE OF THE REASONS, PRESUMABLY, TO AV OID THE ENHANCEMENT OF INCOME DURING THE COURSE OF PROCEEDI NGS BEFORE THE CIT(APPEALS), THE ASSESSEE MIGHT HAVE AVOIDED T O APPEAR BEFORE HIM. HOWEVER, THE CIT(APPEALS), BEING AN AU THORITY EXERCISING JUDICIAL POWER UNDER THE SCHEME OF INCOM E-TAX ACT, CANNOT DISOWN HIS RESPONSIBILITY OF DISPOSING OF AP PEALS ON MERIT EVEN BY ENHANCING THE ASSESSMENT WHEREVER NECESSARY . DISMISSING APPEALS FOR NON-PROSECUTION DUE TO FAILU RE OF THE ASSESSEE TO APPEAR BEFORE THE CIT(APPEALS) WOULD RE SULT IN DETRIMENTAL TO THE INTERESTS OF THE REVENUE. SINCE THE PARLIAMENT HAS ASSIGNED THE ONEROUS RESPONSIBILITY OF ENHANCIN G THE ASSESSMENT TO CIT(A) WHICH IS COTERMINOUS TO THAT O F THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS NO AUTHORITY / POWER TO DISMISS TH E APPEAL FOR NON-PROSECUTION. 8. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT WHEN THE APPEAL WAS TAKEN UP FOR HEARING BEFORE HIM, THE CIT(APPEALS) IS EXPE CTED TO CALL FOR 5 IT(TP)A NO.39/CHNY/19 I.T.A. NO.1373/CHNY/19 RECORDS FROM THE ASSESSING OFFICER AND ADJUDICATE T HE SAME IN ACCORDANCE WITH LAW AFTER RE-APPRECIATING THE MATER IAL AVAILABLE ON RECORD. SINCE SUCH AN EXERCISE WAS NOT DONE BY THE CIT(APPEALS), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE CIT(APPEALS). ACCORDINGLY, THE ORDER OF THE CIT(APPEALS) IS SET ASIDE AND THE ENTIRE ISSUE RAIS ED BY THE ASSESSEE IN THE GROUNDS OF APPEAL IS REMITTED BACK TO THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) SHALL RE-EXAMINE TH E MATTER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND THERE AFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONAB LE OPPORTUNITY TO THE ASSESSEE. 9. IN CASE THE ASSESSEE FAILS TO APPEAR BEFORE THE CIT(APPEALS) EVEN AFTER DUE NOTICE, IT IS OPEN TO THE CIT(APPEAL S) TO DISPOSE THE APPEALS ON MERIT AFTER REAPPRECIATING THE MATERIAL AVAILABLE ON RECORD, INCLUDING THE ASSESSMENT RECORD. 10. WITH THE ABOVE OBSERVATION, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 IT(TP)A NO.39/CHNY/19 I.T.A. NO.1373/CHNY/19 ORDER PRONOUNCED IN THE COURT ON 8 TH NOVEMBER, 2019 AT CHENNAI. SD/- SD/- ( !' #) ( . . . ) (RAMIT KOCHAR) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 8 TH NOVEMBER, 2019. KRI. 0 .' 6 76(' /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 8' () /CIT(A) 4. PRINCIPAL CIT- 5. 69 .' /DR 6. ' : /GF.