R.Santhanalakshmi, CHENNAI V. ITO, CHENNAI

ITA 1383/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7909 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: ARAVINDAN
• Keywords: Reopening of assessment; Unexplained cash credit; Unexplained investment
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1383/MDS/2015 ' (' / ASSESSMENT YEAR : 2008-09 SMT. R. SANTHANALAKSHMI, #30, GRACE ILLAM, ANNA NAGAR WEST, CHENNAI - 600 102. PAN : BKXPS 1428 Q V. THE INCOME TAX OFFICER, NON-CORPORATE WARD 19(3), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI ARAVINDAN, CA ,-*+ . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 18.01.2016 2!( . 1$ / DATE OF PRONOUNCEMENT : 19.2.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-12, CHENNA I, DATED 13.02.2015 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. SHRI ARAVINDAN, THE LD. REPRESENTATIVE FOR THE A SSESSEE, SUBMITTED THAT THE ASSESSING OFFICER MADE AN ADDITI ON OF 2 I.T.A. NO.1383/MDS/15 ` 21,84,433/- UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). ACCORDING TO THE LD. REPRESENTATIVE, O UT OF ` 21,84,433/-, ` 4,00,000/- WAS ADDED AS UNEXPLAINED INVESTMENT AND ANOTHER SUM OF ` 17,84,433/- WAS ADDED AS UNEXPLAINED CASH CREDIT. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT ASSESSING OFF ICER REOPENED THE ASSESSMENT AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF THE ASSESSMENT YEAR IN WHICH THE RETURN WAS FILED. ACC ORDING TO THE LD. REPRESENTATIVE, THERE IS NO NEGLIGENCE ON THE PART OF THE ASSESSEE IN FURNISHING ALL PARTICULARS REQUIRED FOR COMPLETING THE ASSESSMENT. THEREFORE, THE REOPENING OF ASSESSMENT WAS ALSO INV ALID. 3. REFERRING TO THE ORDER OF THE CIT(APPEALS), THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THAT THE CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE F OR NON- PROSECUTION BY PLACING RELIANCE ON THE DECISION OF DELHI BENCH OF THIS TRIBUNAL IN CIT V. MULTIPLAN (INDIA) PVT. LTD. (38 ITD 320). ACCORDING TO THE LD. REPRESENTATIVE, THE CIT(APPEAL S) IS EXPECTED TO DISPOSE THE APPEAL ON MERIT IRRESPECTIVE OF THE FAC T WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT. IN THE CASE B EFORE US, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE A PPEARED BEFORE THIS TRIBUNAL WHICH IS APPARENT FROM THE ORDER OF T HE CIT(APPEALS). 3 I.T.A. NO.1383/MDS/15 THEREFORE, AN OPPORTUNITY MAY BE GIVEN TO THE ASSES SEE TO PRESENT HER CASE ON MERIT BEFORE THE CIT(APPEALS). 3. WE HAVE HEARD SHRI A.V. SREEKANTH, THE LD. DEPAR TMENTAL REPRESENTATIVE ALSO. THE LD. D.R. SUBMITTED THAT T HE CIT(APPEALS) REJECTED THE APPEAL OF THE ASSESSEE SINCE NO ONE AP PEARED BEFORE HIM. ACCORDING TO THE LD. D.R., THE CASE WAS ORIGI NALLY POSTED ON 21.05.2014 AND LATER IT WAS ADJOURNED TO 03.06.2014 . SUBSEQUENTLY, THE ASSESSEES CASE WAS TRANSFERRED T O THE PRESENT JURISDICTION AND POSTED FOR HEARING ON 11.02.2015. WHEN THE APPEAL WAS TAKEN UP FOR HEARING ON 11.02.2015, NO ONE APPE ARED FOR THE ASSESSEE AND THERE WAS NO REQUEST FOR ADJOURNMENT A LSO. THEREFORE, ACCORDING TO THE LD. D.R., THE CIT(APPEA LS) DISMISSED THE APPEAL FOR NON-PROSECUTION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE CIT(APPEALS) REJECTED THE APPEAL OF THE ASSESSEE FO R NON- PROSECUTION. THE FACT REMAINS THAT THE ASSESSEE AP PEARED BEFORE THE CIT(APPEALS) ON 21.05.2014. SUBSEQUENTLY, THE APPEAL WAS TRANSFERRED TO THE PRESENT JURISDICTION AND IT WAS POSTED FOR HEARING ON 11.02.2015. ON 11.02.2015, IT APPEARS THAT NO O NE APPEARED FOR 4 I.T.A. NO.1383/MDS/15 ASSESSEE. THEREFORE, THE CIT(APPEALS) DISMISSED TH E APPEAL. UNDER THE SCHEME OF INCOME-TAX ACT, THE CIT(APPEALS ) HAS COTERMINOUS POWER AS THAT OF THE ASSESSING OFFICER. IN OTHER WORDS, THE CIT(APPEALS) HAS ALL THE POWERS TO ASSESS THE I NCOME WHICH IS OMITTED TO BE ASSESSED BY THE ASSESSING OFFICER, BY WAY OF ENHANCEMENT. UNDER THE SCHEME OF INCOME-TAX ACT, A N ONEROUS RESPONSIBILITY WAS ENTRUSTED WITH THE CIT(APPEALS) TO COMPLETE THE ASSESSMENT ON THE BASIS OF MATERIAL AVAILABLE ON RE CORD. BY REJECTING THE APPEAL OF THE ASSESSEE FOR NON-PROSEC UTION, THE CIT(APPEALS) DISOWNS HIS RESPONSIBILITY OF ENHANCIN G THE ASSESSMENT WHICH IS CONFERRED ON HIM UNDER THE STAT UTE, NAMELY, INCOME-TAX ACT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) CANNOT IGNORE SUCH AN ONEROUS RESPONSI BILITY CONFERRED ON HIM UNDER THE SCHEME OF INCOME-TAX ACT MERELY BECAUSE THE ASSESSEE FAILED TO APPEAR BEFORE HIM. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT EVEN IF THE ASSESSEE HAS FAILED TO APPEAR BEFORE HIM, THE CIT(APPEALS) IS EXPECTED TO DISPOSE THE APPEAL ON MERIT AFTER CALLING FOR RECORDS FROM THE ASSESSING OFFICER. UNFORTUNATELY, SUCH AN EXERCISE WAS NOT DONE BY THE CIT(APPEALS). THE CIT(APPEALS) BY PLACING RELIANCE ON THE DECISIO N OF THIS TRIBUNAL IN MULTIPLAN (INDIA) PVT. LTD. (SUPRA) DIS MISSED THE APPEAL 5 I.T.A. NO.1383/MDS/15 OF THE ASSESSEE. THE CASE OF MULTIPLAN (INDIA) PVT . LTD. (SUPRA) WAS IN RESPECT OF DEFECTIVE APPEAL FILED BEFORE THIS TR IBUNAL. IN THE PRESENT CASE, IT IS NOBODYS CASE THAT THE APPEAL F ILED BY THE ASSESSEE BEFORE THE CIT(APPEALS) IS A DEFECTIVE ONE . IN FACT, NO DEFECTIVE MEMO WAS ISSUED BY THE CIT(APPEALS). THE REFORE, THE DECISION IN THE CASE OF MULTIPLAN (INDIA) PVT. LTD. (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. 5. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE CIT(APPEALS) IS EXPECTED TO DISPOS E THE APPEAL ON MERIT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT. ACCORDINGLY, THE ORDER OF THE CIT(APPE ALS) IS SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMI TTED BACK TO THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) SHALL C ONSIDER THE ISSUE RAISED BY THE ASSESSEE ON MERIT AND THEREAFTER DECI DE THE SAME IN ACCORDANCE WITH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THAT IF THE ASSESSEE FA ILS TO APPEAR BEFORE THE CIT(APPEALS) AFTER ISSUE OF NOTICE, THEN IT IS OPEN TO THE CIT(APPEALS) TO CALL FOR THE RECORDS FROM THE ASSES SING OFFICER AND DISPOSE THE APPEAL ON MERIT. 6 I.T.A. NO.1383/MDS/15 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19 TH FEBRUARY, 2016 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 19 TH FEBRUARY, 2016. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-12, CHENNAI 4. 0 81 /CIT, CHENNAI-3, CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.