A.Hariff, CHENNAI V. ACIT, CHENNAI

ITA 1501/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0757 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-02-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 24-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Gift; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER] I.T.A.NO.1501MDS/2012 ASSESSMENT YEAR : 1998-99 SHRI A. HARIFF 45, SALAI VINAYAGAR KOIL STREET CHENNAI 600 001 VS THE DY. CIT BUSINESS CIRCLE VIII CHENNAI [PAN ABCPH 3501 Q] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B. RAMAKRISHNAN, CA RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 12-02-2013 DATE OF PRONOUNCEMENT : 14-02-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE AS SESSEE AGAINST THE ORDER OF THE CIT(A)-IX, CHENNAI, DATED 29.2.2012. 2. THE APPEAL FILED BY THE ASSESSEE WAS BARRED BY LIM ITATION OF 86 DAYS AND A DEFECT MEMO WAS ISSUED BY THE REGI STRY POINTING OUT TO THE ASSESSEE THAT NO CONDONATION PETITION HAS B EEN FILED IN RESPECT OF THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUN AL. THEREAFTER, THE I.T.A.NO.1501/12 :- 2 -: A.R OF THE ASSESSEE FILED A REVISED FORM NO.36 BEFO RE THE TRIBUNAL ON 11.2.2013 AND SUBMITTED THAT THE DATE OF COMMUNICAT ION OF THE ORDER OF THE CIT(A) APPEALED AGAINST, WAS WRONGLY STATED AS 29.2.2012 IN PLACE OF 23.6.2012 IN COLUMN NO.9 OF FORM NO.36 FIL ED ON 23.7.2012. HE SUBMITTED THAT IF THE DATE OF COMMUNICATION OF O RDER OF THE CIT(A) IS TAKEN AS 23.6.2012 THEN THERE WAS NO DELAY IN FI LING THE APPEAL BEFORE THE TRIBUNAL. THE DR HAD NO OBJECTION TO TH E ABOVE SUBMISSION OF THE A.R. HENCE, THE APPEAL WAS ADMITTED FOR HEA RING AND THE PARTIES WERE ALLOWED TO MAKE THEIR SUBMISSIONS THER EON. 3. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF A PPEAL: 1. FOR THAT THE ORDER OF THE COMMISSIONER OF INCO ME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND AT ANY RATE IS OPPOSED TO THE PRINCIPLES OF EQUITY, NATURA L JUSTICE AND FAIR PLAY . 2. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN DISMISSING THE APPEAL FOR THE REASON THAT THERE WAS NO APPEARANCE WHEN THE CASE WAS POSTED FOR HEARING. 3. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEAL S) FAILED TO APPRECIATE THAT THE APPELLANT COULD HAVE DERIVED NO BENEFIT BY NOT APPEARING BEFORE HIM FOR THE HEARING AND THAT THE S AME COULD NOT HAVE BEEN THE INTENT OF THE APPELLANT . 4. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEAL S) OUGHT TO HAVE NOT DISMISSED THE CASE FOR WANT OF PROSECUTION . 5. FOR THAT WITHOUT PREJUDICE TO THE ABOVE , THE APPELLANT SHOULD NOT SUFFER FOR THE FAULT OF THE AUTHORIZED REPRESENTATI VE. 6. THE COMMISSIONER OF INCOME TAX ERRED IN NOT FORW ARDING THE ASSESSING OFFICER ' S REMAND REPORT TO THE APPELLANT AND ALSO ERRED IN CONFIRMING THE ADDITION BASED ON THE SAID REMAND REPORT. I.T.A.NO.1501/12 :- 3 -: 7. THE COMMISSIONER OF INCOME TAX ERRED IN CONFIRM ING THE ADDITION OF RS.6000/- TOWARDS DRAWINGS MADE BY THE LEARNED ASSESSING OFFICER 8. THE COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ADDITION OF RS . 2,24,700/- ON ACCOUNT OF GIFT RECEIVED BY THE APPELLANT, MADE BY THE LEARNED ASSESSING OFFICER . 9. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MAY BE ADDUCED BEFORE OR DURING THE HEARING OF THE APPEAL, IT IS P RAYED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO I) DIRECT THE COMMISSIONER OF INCOME TAX (APPEALS) TO HEAR THE CASE ON MERITS II) PASS SUCH OTHER ORDERS AS THE HON'BLE TRIBUNAL MAY DEEM FIT . 4. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE CIT(A) ERRED IN DISMISSING THE APPEAL ON THE GROUND OF NON- APPEARANCE OF THE ASSESSEE ON THE DATE OF HEARING FIXED BY HIM. 5. THE A.R OF THE ASSESSEE SUBMITTED THAT IN THE INTE REST OF NATURAL JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE CIT(A). HE UNDERTAKES TO CO-OPERATE WITH THE CIT(A) AND FILE ALL MATERIALS REQUIRED BY HIM T O DISPOSE OF THE APPEAL OF THE ASSESSEE. 6. THE DR HAD NO OBJECTION TO THE ABOVE SUBMISSIONS OF THE A.R OF THE ASSESSEE. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING TH E MATERIAL AVAILABLE ON RECORD, WE FIND THAT IN THE INSTANT CA SE, THE APPEAL OF THE I.T.A.NO.1501/12 :- 4 -: ASSESSEE CAME TO BE DISMISSED BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE FAILED TO PUT IN APPEARANCE ON THE DATE OF HEARING FIXED BY HIM. IN OUR CONSIDERED OPINION, THE CIT(A) IS A QU ASI-JUDICIAL AUTHORITY. IT IS A SETTLED PROPOSITION OF LAW THAT A QUASI-JUDICIAL AUTHORITY SHOULD DISPOSE OF THE APPEAL OF THE ASSE SSEE ON MERITS ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD EVEN IN A CASE WHERE THE ASSESSEE FAILS TO PUT IN APPEARANCE ON THE DATE OF HEARING FIXED BY HIM SO THAT THE ASSESSEE IS ABLE TO MEET ITS CASE IN A PPEAL BEFORE A HIGHER FORUM. OUR ABOVE VIEW FINDS SUPPORT FROM THE DECI SION OF HON'BLE DELHI HIGH COURT IN THE CASE OF VODAFONE ESSAR LTD VS DISPUTE RESOLUTION PANEL-II [2011] 196 TAXMAN 423. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE DISMISSAL OF APPEAL BY THE CIT(A) WAS NOT PROPER AND JUSTIFIED. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO DI SPOSE OF THE APPEAL OF THE ASSESSEES ON MERITS AFTER ALLOWING REASONAB LE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS DIR ECTED SUO MOTU TO APPEAR BEFORE THE CIT(A) WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER FOR FIXING THE HEARING OF THE APPEAL AND TO FILE ALL EVIDENCES AND MATERIALS BEFORE THE CIT(A) AS AND WH EN CALLED UPON TO DO SO. THE CIT(A) IS ALSO DIRECTED TO DISPOSE OF T HE APPEAL I.T.A.NO.1501/12 :- 5 -: EXPEDITIOUSLY. WITH THESES DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THURSDAY, THE 14 TH OF FEBRUARY, 2013, AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 14 TH FEBRUARY, 2013 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR