D.Mahaveerchand, CHENNAI V. ITO, CHENNAI

ITA 1788/CHNY/2015

• Counselvise Citation: 178821714 RSA 2015
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: G BASKAR
• Section: 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO.1788/MDS/2015 ' #$' / ASSESSMENT YEAR : 2005-06 SHRI D. MAHAVEERCHAND, 4, BINNY COLONY, PERAMBUR BARRACKS ROAD, CHENNAI - 600 012. PAN : AFPPR 8610 B V. THE INCOME TAX OFFICER, WARD XIII(4), CHENNAI - 600 034. (&'/ APPELLANT) (()&'/ RESPONDENT) &' * + / APPELLANT BY : SHRI G. BASKAR, ADVOCATE ()&' * + / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT , # * -. / DATE OF HEARING : 23.10.2015 /0$ * -. / DATE OF PRONOUNCEMENT : 13.11.2015 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-12, CHENNA I, DATED 19.02.2015. THE ONLY ISSUE ARISES FOR CONSIDERATIO N IS WITH REGARD TO ADDITION OF ` 9 LAKHS TO THE RETURNED INCOME. 2. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A SURVEY IN THE PREMISES OF THE ASSE SSEE UNDER 2 I.T.A. NO.1788/MDS/15 SECTION 133A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE SURVEY TEAM FOUND CASH OF ` 52,030/-. HOWEVER, AS PER THE BOOKS OF ACCOUNT, THE AVAILABLE CASH WAS ` 85,409/-. THE AVAILABLE STOCK AS PER THE INVENTORY WAS ARRIVED AT ` 14,36,279/-. HOWEVER, AS PER THE COMPUTERIZED STATEMENT, THE STOCK WAS FOUND TO BE ` 4,51,568/-. THERE WAS A BANK BALANCE AS ON 31.03.2004 TO THE EX TENT OF ` 4,51.568/-. THE ASSESSEE ADMITTED DURING THE YEAR UNDER CONSIDERATION AN INCOME OF ` 2,91,971/-. WHEN THE ASSESSEE WAS ASKED TO RECONCILE THE DIFFERENCE, THE ASSESSEE ADM ITTED TO OFFER A SUM OF ` 9 LAKHS FOR THE ASSESSMENT YEAR 2005-06. ACCORDING TO THE LD. COUNSEL, OTHER THAN THE STATEMENT RECORDED FROM THE ASSESSEE, NO OTHER MATERIAL IS THERE TO SUPPORT THE ADDITION OF ` 9 LAKHS MADE BY THE ASSESSING OFFICER, THEREFORE, THE ASSESSING OFFICER CANNOT PLACE ANY RELIANCE ON THE STATEMENT RECORDED FROM T HE ASSESSEE. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) WITHOUT GOING INTO THE MERIT OF THE CASE, DISMISSED THE APPEAL OF THE ASSE SSEE ON THE GROUND THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM. ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) HAS NO POWER TO D ISMISS THE APPEAL FOR NON-PROSECUTION. THE LD.COUNSEL POINTED OUT THAT IRRESPECTIVE OF APPEARANCE OF THE ASSESSEE, THE CIT (APPEALS) IS EXPECTED TO CALL FOR DETAILS FROM THE ASSESSING OFF ICER AND DISPOSE 3 I.T.A. NO.1788/MDS/15 OF THE APPEAL. SINCE THE APPEAL HAS NOT BEEN DISPO SED OF, ACCORDING TO THE LD. COUNSEL, THE MATTER MAY BE REM ITTED BACK TO THE FILE OF THE CIT(APPEALS) WITH A DIRECTION TO DISPOS E OF THE APPEAL ON MERIT. 3. I HAVE HEARD SHRI A.V. SREEKANTH, THE LD. DEPART MENTAL REPRESENTATIVE ALSO. THE LD. D.R. SUBMITTED THAT I NSPITE OF SUFFICIENT OPPORTUNITY GIVEN BY THE CIT(APPEALS), T HE ASSESSEE HAD NOT APPEARED BEFORE THE CIT(APPEALS). THEREFORE, B Y PLACING RELIANCE ON THE DECISION OF DELHI BENCH OF THIS TRI BUNAL IN CIT V. MULTIPLAN (INDIA) LTD. (38 ITD 320), THE CIT(APPEA LS) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN FACT, THE CIT(APPEALS) HAS NOT DISPOSED OF THE APPEAL ON MERIT AND THE APP EAL WAS DISMISSED ONLY ON THE GROUND THAT THE ASSESSEE FAIL ED TO APPEAR BEFORE HIM. UNDER THE SCHEME OF INCOME-TAX ACT, TH E CIT(APPEALS) IS EMPOWERED TO ENHANCE THE ASSESSMENT IN CASE ANY PARTICULAR INCOME WAS OMITTED TO BE CONSIDERED BY THE ASSESSIN G OFFICER IN THE ASSESSMENT PROCEEDINGS. THE CIT(APPEALS) HAS C O-TERMINUS POWER AS THAT OF THE ASSESSING OFFICER. THEREFORE, UNDER THE 4 I.T.A. NO.1788/MDS/15 SCHEME OF INCOME-TAX ACT, THE ONUS LIES UPON THE CI T(APPEALS) TO EXAMINE THE ISSUE AND FIND OUT IF ANY PARTICULAR IN COME WAS OMITTED TO BE CONSIDERED. THE CIT(APPEALS) HAS TO EXAMINE THE INCOME WHICH WAS OMITTED TO BE CONSIDERED BY THE ASSESSING OFFICER AND FRAME THE ASSESSMENT. BY DISMISSING THE APPEAL FOR NON- PROSECUTION, THE CIT(APPEALS) HAS DISOWNED HIS RESP ONSIBILITY CAST UPON HIM UNDER THE SCHEME OF THE INCOME-TAX ACT. O NCE AN APPEAL IS FILED BEFORE HIM, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE CIT(APPEALS) HAS TO CONSIDER THE SAME ON MERIT. IF THE CIT(APPEALS) DISMISSED THE APPEAL FOR NON-PROSECUTI ON, THEN HE MAY NOT HAVE ANY OCCASION TO ENHANCE THE ASSESSMENT BY ASSESSING THE INCOME WHICH WAS OMITTED TO BE CONSID ERED BY THE ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS NO AUTHORITY/POWE R TO DISMISS THE APPEAL FOR NON-PROSECUTION. THE CIT(APPEALS), BEIN G THE SENIOR MOST OFFICER OF THE DEPARTMENT, HAS TO CALL FOR REC ORD FROM THE ASSESSING OFFICER AND EXAMINE THE SAME THOROUGHLY O N THE BASIS OF THE GROUNDS OF APPEAL RAISED BEFORE HIM AND THEREAF TER DISPOSE ON MERIT IN ONE WAY OR OTHER. IF NECESSARY, THE CIT(A PPEALS) IS EXPECTED TO ENHANCE THE ASSESSMENT BY INCLUDING THE INCOME, WHICH WAS OMITTED BY THE ASSESSING OFFICER. THEREF ORE, THE 5 I.T.A. NO.1788/MDS/15 CIT(APPEALS) IS NOT JUSTIFIED IN DISMISSING THE APP EAL FOR NON- PROSECUTION. 5. IN VIEW OF THE FOREGOING DISCUSSION, THIS TRIBUN AL IS UNABLE TO UPHOLD THE VIEW TAKEN BY THE CIT(APPEALS). THEREFO RE, THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE CIT(APPEA LS). THE CIT(APPEALS) SHALL RECONSIDER THE ISSUE AFRESH IN T HE LIGHT OF THE GROUNDS OF APPEAL FILED BY THE ASSESSEE AND THEREAF TER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABL E OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THAT IN CASE THE AS SESSEE FAILS TO APPEAR BEFORE THE CIT(APPEALS) AFTER ISSUING NOTICE , IT IS OPEN TO THE CIT(APPEALS) TO DISPOSE ON MERIT ON THE BASIS OF TH E MATERIAL AVAILABLE ON RECORD. 6. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 13 TH NOVEMBER, 2015 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED, THE 13 TH NOVEMBER, 2015. 6 I.T.A. NO.1788/MDS/15 KRI. * (-34 54$- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 6- () /CIT(A)-12, CHENNAI-34 4. , 6- /CIT, CHENNAI-3. CHENNAI-34 5. 4#7 (- /DR 6. 8' 9 /GF.