Indroyal Furniture Company P Limited, Trivandrum V. Additional Commissioner of Income Tax, Trivandrum

ITA 164/COCH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52218 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-03-2009
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: P VENUGOPAL FCAAR
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NO. 164/COCH/2009 ASSESSMENT YEAR : 2005-06 INDROYAL FURNITURE CO. (P.) LTD., M.G.ROAD, ROYAL PLAZA, PATTOM, TRIVANDRUM - 695004 [PAN:AAACI 5160N] VS. THE ADDL. COMMISSIONER OF INCOME-TAX, RANGE 1, TRIVANDRUM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI P.VENUGOPAL, FCA-AR REVENUE BY MS. S. VIJAYAPRABHA, DR DATE OF HEARING : 04/08/2011 DATE OF PRONOUNCEMENT: 10/08/2011 O R D E R PER SANJAY ARORA, AM: THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KOCHI (CIT(A) FOR SHORT ) DATED 12.2.2009, AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2005-06. 2.1 OPENING THE ARGUMENTS ON BEHALF OF THE ASSESSEE , IT WAS SUBMITTED BY THE LD. AR, ITS COUNSEL, THAT THE FIRST APPELLATE AUTHORITY HAD DISMISSED ITS APPEAL DUE TO NON- ATTENDANCE AT THE HEARING, INFERRING THEREBY LACK O F INTEREST IN PROSECUTING ITS CASE. HOWEVER, THE FACT IS THAT THE NON-APPEARANCE ON THE RELEVANT DATE/S OCCURRED AS THE ASSESSEE WAS NOT AWARE OF THE FACT THAT ITS FILE HA D BEEN TRANSFERRED FROM TRIVANDRUM, WHEREAT THE APPEAL WAS FILED, TO ERNAKULAM. HE, TH EN PROCEEDED TO NARRATE THE ASSESSEES CASE QUA EACH OF THE GROUNDS ASSUMED IN APPEAL BEFORE US, A GITATING ALL THE I.T.A. 164/COCH/2009 2 ADDITIONS/DISALLOWANCES AS EFFECTED IN THE ASSESSME NT ORDER EXCEPT FOR DEDUCTION U/S. 80JJA, WHICH IS FOR A PALTRY SUM OF ` 3441/- . 2.2 THE LD. DR, ON THE OTHER HAND, WOULD SUBMIT THA T THE ASSESSEES APPEAL IS NOT MAINTAINABLE FOR THE SIMPLE REASON THAT THE LD. CIT (A) HAS NOT ADJUDICATED THE ASSESSEES APPEAL BEFORE HIM ON MERITS, BUT ONLY DISMISSED IT IN LIMINE , I.E., FOR WANT OF PROSECUTION. AS SUCH, NO APPEAL WOULD TECHNICALLY LIE AGAINST SU CH AN ORDER. FURTHER, ON MERITS, IT WAS CONTENDED BY HER, WITH REFERENCE TO EACH OF THE ADD ITIONS/DISALLOWANCES IN DISPUTE, THAT THE SAME IS WELL-MERITED, ARISING IN THE MAIN ONLY OUT OF THE ASSESSEES INABILITY TO PROVE ITS CLAIM/S BEFORE THE ASSESSING AUTHORITY. THE IMP UGNED ORDER, THEREFORE, CONSIDERED EITHER WAY, MERITS BEING UPHELD. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON GROUND. CLEARLY, IT IS NOT CORRECT TO SAY THAT THE ASSESSEES APPEAL IS NOT MA INTAINABLE; THE SAME ARISING ONLY OUT OF THE ORDER OF THE FIRST APPELLATE AUTHORITY DISMISSI NG THE ASSESSEES APPEAL. BESIDES, THIS WOULD LEAVE THE ASSESSEE WITHOUT ANY REMEDY IN LAW, AND WHICH CANNOT BE. HOWEVER, THERE IS SUBSTANCE IN THE ARGUMENT INASMUCH AS IT I S ONLY CORRECT THAT UNLESS THERE IS AN ADJUDICATION ON MERITS BY THE FIRST APPELLATE AUTHO RITY, IT WOULD NOT BE PROPER OR EVEN FEASIBLE FOR THE TRIBUNAL TO INTERFERE WITH ITS ORD ER ON THE MERITS OF THE ASSESSEES GRIEVANCE/S BEFORE IT. IT IS ONLY WHERE SUCH AN OR DER HAS BEEN PASSED THAT THE SAME CAN BE EXAMINED ON MERITS, AND THE FINDINGS AS WELL AS THE DECISION RENDERED EITHER AFFIRMED OR MODIFIED OR VACATED. THE LD. CIT(A), HOWEVER, HAS N OT DELIVERED ANY DECISION ON MERITS. IN DISPOSING THE APPEAL THUS, HE HAS IN OUR OPINION TRAVELLED OUTSIDE THE SCOPE OF S. 251(1)(A), WHICH ENVISAGES A DECISION ON MERITS. NO DOUBT, HE QUALIFIES HIS DECISION TO DO SO BY EXPRESSING HIS INABILITY (UNDER THE CIRCUMSTA NCES) TO VERIFY THE ASSESSEES CLAIMS, BUT THEN HIS PURVIEW U/S. 251(1) IS ESSENTIALLY A R EVIEW OF THE PROCEEDINGS BEFORE THE ASSESSING AUTHORITY, CULMINATING IN THE ASSESSMENT ORDER APPEALED AGAINST. AS SUCH, IF AND WHERE REQUIRED, HE COULD HAVE CALLED FOR AND EXAMIN ED THE ASSESSMENT RECORD, SO AS TO UNDERSTAND THE ASSESSEES CASE/STAND ON THE VARIOUS ISSUES BEFORE THE ASSESSING AUTHORITY, AS WELL AS THE STATUS QUA THE GRANT OF REASONABLE OPPORTUNITY OF HEARING BY THE ASSESSING I.T.A. 164/COCH/2009 3 OFFICER (TO THE ASSESSEE TO PRESENT AND SUPPORT HIS CASE BEFORE HIM), AND DECIDE ACCORDINGLY. FURTHER, EVEN AS THE ASSESSEE HAS NOT SUBSTANTIATED ITS CLAIM OF BEING UNAWARE OF ITS APPEAL/CASE HAVING BEEN SHIFTED TO ERNAKULAM, W E FIND SOME MERIT IN ITS CONTENTION, SO THAT THE NON-APPEARANCE BEFORE THE FIRST APPELLATE AUTHORITY WAS NOT DELIBERATE, AND DID NOT ARISE OUT OF NEGLIGENCE IN PURSUING ITS APPEAL. UND ER THE CIRCUMSTANCES, WE, ACCEPTING ITS PLEA, RESTORE THE MATTER BACK TO THE FILE OF THE FI RST APPELLATE AUTHORITY, SO AS TO ACCORD WITH THE PROCEDURE MANDATED BY LAW, AS WELL AS BY THE IN TEREST OF JUSTICE, FOR A DECISION ON MERITS, IN ACCORDANCE WITH LAW, AND AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 10TH AUGUST, 2011 GJ COPY TO: 1. INDROYAL FURNITURE CO. (P.) LTD., M.G.ROAD, ROYA L PLAZA, PATTOM, TRIVANDRUM-695004. 2. THE ADDL.COMMISSIONER OF INCOME-TAX, RANGE-1, TR IVANDRUM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, KO CHI. 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .