Siva Prasad Manchiraju, Hyderabad V. Income Tax Officer, Ward-13(5), Hyderabad

ITA 168/Hyd/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6428 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J PAVITRAN KUMAR
• Assessee Lawyers: K A SAI PRASAD
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 168/HYD/2018 ASSESSMENT YEAR: 2007-08 SIVA PRASAD MANCHIRAJU, HYDERABAD [PAN: AHFPM5162K] VS THE INCOME TAX OFFICER, WARD-13(5), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.A. SAI PRASAD, AR FOR REVENUE : SHRI J. PAVITRAN KUMAR, DR DATE OF HEARING : 24-07-2018 DATE OF PRONOUNCEMENT : 25-07-2018 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD, DATED 15-11-2017. THE GRIEVANCE IN THIS APPEAL IS THAT LD. CIT(A) HAS DISMISSED THE APPEAL WITHOUT HEARING THE ASSESSEE. 2. BRIEFLY STATED, ASSESSING OFFICER (AO) HAS COMPLET ED THE ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE INCOME TAX A CT [ACT] COMPUTING THE CAPITAL GAINS AT RS. 5,26,000/- AS AGAINS T RS. (-)2,856/- LOSS WORKED OUT BY ASSESSEE ON SALE O F CERTAIN PROPERTY. WHEN APPEAL IS PREFERRED BEFORE THE CIT(A) , LD.CIT(A) HAS GIVEN POSTINGS BETWEEN MAY 2017 TO NOVEMBER, 201 7 AND EACH TIME, THOUGH THERE WAS REQUEST FOR ADJOURNMENT, NON E HAVE APPEARED. SINCE NUMBER OF ADJOURNMENTS WERE SO UGHT BY ASSESSEE/COUNSEL, LD.CIT(A) INVOKING THE POWERS OF THE I.T.A. NO. 168/HYD/2018 :- 2 - : ITAT AND RELYING ON THE CO-ORDINATE BENCH DECISION IN THE CASE OF M/S METKORE ALLOYS & INDUSTRIES LTD., IN ITA NO. 578/HYD/2016, DT. 30-11-2016, DISMISSED THE APPEAL FOR NON- APPEARANCE OF ASSESSEE AT THE TIME OF HEARING. 3. IT WAS THE SUBMISSION THAT THERE ARE VALID REASONS FOR LD. COUNSEL NOT IN A POSITION TO APPEAR BEFORE THE CIT(A) D URING THE PARTICULAR PERIOD AND IF GIVEN AN OPPORTUNITY, AS SESSEE WOULD SUBMIT THE FACTS SO THAT APPEAL CAN BE DECIDED O N MERITS. IT WAS THE PRAYER THAT MATTER MAY BE RESTORED TO THE FILE OF LD.CIT(A). 4. LD.DR, HOWEVER, SUBMITTED THAT ASSESSEE WAS GIVEN NUMBER OF OPPORTUNITIES WHICH WERE NOT AVAILED. 5. ON PERUSAL OF THE ORDER OF CIT(A), IT IS NOTICED TH AT LD.CIT(A) DISMISSED THE APPEAL FOR NON-APPEARANCE, WITHOUT CONSIDERING THE MERITS OF ISSUE. EVEN THOUGH LD. CIT( A) RELIED ON THE ORDERS OF THE ITAT, THE POWERS OF ITAT ARE EN TIRELY DIFFERENT FROM THE POWERS OF THE CIT(A) IN DISPOSAL OF THE APPEALS. AS PER SECTION 251(1)(A) OF THE ACT, IN DIS POSING OF AN APPEAL THE CIT(A) SHALL HAVE POWERS IN AN APPEAL AGAINST T HE ORDER UNDER ASSESSMENT, MAY CONFIRM, REDUCE, ENHANC E OR ANNUL THE ASSESSMENT . THUS, THE POWERS OF THE CIT(A) ARE RESTRICTED TO THE ABOVE FOUR WAYS OF DISPOSAL OF APPEAL AND CIT( A) CANNOT TRAVEL BEYOND THE POWERS GRANTED U/S. 251 OF THE ACT BY FOLLOWING THE POWERS OF ITAT. THE POWERS GRANTED TO ITAT U/S. 254(1) ARE THAT ITAT HAS POWER TO PASS SUCH ORDERS THE REON AS I.T.A. NO. 168/HYD/2018 :- 3 - : IT THINKS FIT. THEREFORE, THE CIT(A), WHEN NOT CONFER RED WITH ABSOLUTE DISCRETION, HAS TO RESTRICT WITHIN THE POWERS CONFERRED/GIVEN U/S. 251(1) OF THE ACT. THEREFORE, DISMISSAL OF APPEAL WITHOUT CONSIDERING THE APPEAL ON MERITS, IS N OT A PROPER PROCEDURE TO BE FOLLOWED BY THE CIT(A). MOREO VER, AS SEEN FROM THE ADJOURNMENT LETTERS, THERE ARE VALID REAS ON FOR SEEKING ADJOURNMENTS AND ON THE LAST OCCASION, THE COU NSEL HAS SPECIFICALLY STATED THAT THE ASSOCIATE, WHO WAS LOO KING AFTER THE FILE, HAS BEEN LAID UP WITH HIGH FEVER AND URINARY TRACT INFECTION AND WAS UNABLE TO REPRESENT THE CASE FOR A VALID REASON AND THE SAME COULD HAVE BEEN CONSIDERED BY T HE LD.CIT(A), BEFORE RESORTING TO DISMISSAL OF THE APPEA L. 5.1. BE THAT AS IT MAY, I AM OF THE OPINION THAT ASSESSE E SHOULD BE GIVEN AN OPPORTUNITY FOR REPRESENTING THE CA SE PROPERLY. IN VIEW OF THAT IN THE INTEREST OF JUSTICE , I HEREBY SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND RESTORE THE APPEAL TO BE CONSIDERED ON MERITS, AFTER GIVING DUE OPPORTUNI TY TO ASSESSEE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2018 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 25 TH JULY, 2018 TNMM I.T.A. NO. 168/HYD/2018 :- 4 - : COPY TO : 1. SIVA PRASAD MANCHIRAJU, HYDERABAD. C/O. CH. PARTHASARATHY & CO., 1-1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST.NO.1, ASHOKNAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-13(5), HYDERABAD. 3. CIT (APPEALS)-4, HYDERABAD. 4. PR.CIT-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.