M/s. Rathna Store Pvt. Ltd., CHENNAI V. DCIT, CHENNAI

ITA 180/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58142 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHARANAC I T
• Assessee Lawyers: T N SEETHARAMAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENN AI BEFORE SHRI ABARAHAM P.GEORGE ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER .. ITA NO.180/MDS./2012 ASSESSMENT YEAR:2008-09 M/S.RATHNA STORE PVT. LTD., 79,USMAN ROAD, T.NAGAR, CHENNAI 600 017. VS. DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE V(3), CHENNAI 600 034. PAN AACCR 7287 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI T.N. SEETHARAMAN,ADVOCATE DEPARTMENT BY : SHRI S.MOHARANA,C.I.T. DR DATE OF HEARING : 27.03.12 DATE OF PRONOUNCEMENT : 27. 03.12 O R D E R PER ABARAHAM P GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY ASSESSEE AGAINST AN ORD ER DATED 25.11.2011 OF COMMISSIONER OF INCOME TAX (A) -V, CH ENNAI, ITS GRIEVANCE IS THAT THE CIT(A) HAD DISMISSED ITS APPEAL FOR NON PROSECUTION WHEREAS U/S.250(6) OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT), THE C.I.T.(A) WAS DUTY B OUND TO DEAL WITH THE CASE ON MERITS IN ACCORDANCE WITH LAW. ITA.180 /MDS/12 2 2. WHEN THE MATTER CAME UP FOR HEARING BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON SIMILAR ISSUE THIS TRIBUNAL VIDE ITS ORDER DATED 18 TH JANUARY,2012 (ITA NOS.1821 & 1822/MDS./2011) IN THE CASE OF M/S.QUESTNE ENTERP RISES INDIA PRIVATE LIMITED, HAD HELD THAT COMMISSIONER O F INCOME TAX(A) WAS DUTY BOUND TO DEAL WITH THE MERITS OF TH E CASE AND DECIDE, AND COULD NOT DISMISS AN APPEAL FOR WANT OF APPEARANCE OF THE ASSESSEE. LD. DR ON THE OTHER HA ND, STRONGLY SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX(A). 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PE RUSED THE ORDERS OF THE LOWER AUTHORITIES BELOW. NO DO UBT, THE COMMISSIONER OF INCOME TAX(A) HAS NOTED THAT THE REPRESENTATIVE OF ASSESSEE DID NOT ENTER APPEARANCE BEFORE HIM DESPITE POSTINGS ON 14.06.11, 0.09.11, 23.09.11 , 25.10.11 & 08.11.2011. AS PER THE COMMISSIONER OF INCOME TA X(A) LAW HELPS ONLY THE VIGILANT AND NOT ONE WHO SLEEPS OVER ONES RIGHTS AND HE DISMISSED THE APPEAL WITHOUT GOING IN TO MERITS. ON SIMILAR SITUATION IN THE CASE OF M/S.QUESTNET EN TERPRISES INDIA PRIVATE LIMITED (SUPRA), CO-ORDINATE BENCH OF THIS TRIBUNAL HELD AT PARA NO.4 OF ITS ORDER, AS UNDER: - ITA.180 /MDS/12 3 4. WE HAVE HEARD THE CONTENTIONS. APPEAL BEFORE CIT(A) U/S.246A OF INCOME-TAX ACT, 1961 (IN SHORT THE ACT) IS A STATUTORY RIGHT GIVEN TO AN ASSESSEE. A S PER SUB-SECTION (6) OF SECTION 250 OF THE ACT, WHICH PRESCRIBES THE PROCEDURE TO BE FOLLOWED BY A C.I.T.(APPEALS), AN ORDER OF C.I.T.(APPEALS) DISPOS ING OF AN APPEAL SHALL BE IN WRITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION TAKEN THEREON AND REASONS FOR THE DECISION. IN OTHER WORDS, THERE IS NO POWER VESTED ON COMMISSIONER OF INCOME TAX(APPEALS) TO DISMISS THE APPEAL OF AN ASSESSEE FOR NON- PROSECUTION OR NON-APPEARANCE. HE HAS TO DEAL WITH THE CASE ON MERITS IN ACCORDANCE WITH LAW. IN ANY CASE , HERE, ASSESSEE HAD FILED AN APPLICATION FOR ADJOURN MENT ON 28 TH OCTOBER, 2011 AND NOTHING WAS MENTIONED BY C.I.T.(APPEALS) ON SUCH ADJOURNMENT PETITION. WE AR E, THEREFORE, OF THE OPINION THAT THE MATTER HAS TO GO BACK TO C.I.T.(APPEALS) FOR CONSIDERATION AFRESH FOR BOT H THE YEARS. WE, THEREFORE SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS) FOR BOTH THE YEARS AND REMIT IT BACK TO HIM FOR CONSIDERATION DE NOVO IN ACCORDANCE WITH LAW, AFTER GIVING DUE OPPORTUNIT Y TO THE ASSESSEE FOR PRESENTING ITS CASE. WE ARE IN AGREEMENT WITH A VIEW TAKEN BY THE CO-ORD INATE BENCH OF THIS TRIBUNAL THAT COMMISSIONER OF INCOME TAX(APPEALS) WAS OBLIGED TO DECIDE THE CASE ON MERI TS AND COULD NOT DISMISS AN APPEAL FOR WANT OF PROSECUTION . WE, ITA.180 /MDS/12 4 THEREFORE, SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) AND REMIT THE APPEAL BACK TO HIM FOR CONSIDERATION DE NOVO IN ACCORDANCE WITH LAW AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE FOR PRESENTING ITS CASE . 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 27 TH MARCH, 2012. SD/- SD/- ( VIKAS AWASTHY ) (ABRAHAM P. GEORGE ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 27 TH MARCH, 2012. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE ITA.180 /MDS/12 5