Eswara Reddy Thota, CHENNAI V. ITO, CHENNAI

ITA 1850/CHNY/2015

• Counselvise Citation: 185021714 RSA 2015
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 12-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: G BASKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO. 1850/MDS/2015 / ASSESSMENT YEAR : 2009-10 SHRI ESWARA REDDY THOTA PLOT NO.5179B, RAMNAGAR NORTH EXTN., MADIPAKKAM CHENNAI 600 091 VS. THE INCOME TA X OFFICER BUSINESS WARD XIII(4) CHENNAI [PAN ADKPT 7080 L ] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI G BASKAR, ADVOCATE /RESPONDENT BY : SHRI P RADHAKRISHNAN, JCIT / DATE OF HEARING : 12 - 1 1 - 2015 ! / DATE OF PRONOUNCEMENT : 20 - 11 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-4(I/C) CH ENNAI, DATED 29.5.2015 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. SHRI G. BASKAR, LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). H OWEVER, THE CIT(A) DISMISSED THE APPEAL WITHOUT GOING TO THE MERIT OF THE CASE ON THE GROUND THAT THE ASSESSEE HAS NOT APPEARED BEFORE H IM. BY WAY OF ITA NO.1850/15 :- 2 -: CASUAL REFERENCE, THE CIT(A) FOUND THAT THE ASSESS EE HAS NOT FURNISHED ANY EVIDENCE BEFORE HIM. THE LD. COUNSEL SUBMITTED THAT THE CIT(A) BEING THE FIRST APPELLATE AUTHORITY, IS BOUN D TO CALL FOR THE RECORDS OF THE ASSESSING OFFICER AND APPRECIATE THE MATTER ON MERIT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE HAS APPEARED BEFORE HIM OR NOT. THE LD. COUNSEL FURTHER SUBMITTED THAT THE CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-APPEARANCE OF T HE ASSESSEE. 3. ON THE CONTRARY, SHRI P RADHAKRISHNAN, LD. DEPARTME NTAL REPRESENTATIVE SUBMITTED THAT THE CIT(A) HAS GIVEN AMPLE OPPORTUNITY TO THE ASSESSEE, HOWEVER, THE SAME WAS NOT AVAILED BY THE ASSESSEE. REFERRING TO THE ORDER OF THE CIT(A), THE LD. DR PO INTED OUT THAT THIS TRIBUNAL ALSO DISMISSED THE APPEAL FOR NON-PROSECUT ION. THEREFORE, IN THE ABSENCE OF ANY MATERIAL BEFORE THE CIT(A), ACCO RDING TO THE LD. DR, THE CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. UN DER THE SCHEME OF THE INCOME-TAX ACT, 1961, THE CIT(A) HAS POWERS CO- TERMINUS WITH THAT OF THE ASSESSING OFFICER. UNDER SEC.251(1)(A ) OF THE ACT, THE CIT(A) MAY ENHANCE THE ASSESSMENT MADE BY THE ASSES SING OFFICER BY INCLUDING ANY INCOME WHICH WAS OMITTED TO BE CONSID ERED BY THE ASSESSING OFFICER. IF THE CIT(A) DISMISSED THE APP EAL FOR NON- ITA NO.1850/15 :- 3 -: PROSECUTION, THIS POWER TO ENHANCE THE ASSESSMENT W OULD BE DEFEATED AND THE CIT(A) MAY NOT HAVE ANY OCCASION TO APPRECI ATE THE ASSESSMENT ORDER TO FIND OUT WHETHER ANY SOURCE OF INCOME WAS OMITTED TO BE CONSIDERED BY THE ASSESSING OFFICER. THE MERE FACT THAT THE PARLIAMENT PROVIDES POWER TO ENHANCE THE ASSESS MENT TO THE CIT(A), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS TO CALL FOR THE RECORDS OF THE ASSESSING OFFICER AN D DISPOSE OF THE APPEAL ON MERIT IRRESPECTIVE OF THE FACT WHETHER TH E ASSESSEE HAS APPEARED BEFORE HIM OR NOT. IN THE IMPUGNED ORDER OF THE CIT(A), THE CIT(A) REFERS THE ORDER OF THIS TRIBUNAL WHEREIN TH E APPEAL WAS DISMISSED FOR NON-PROSECUTION. THIS TRIBUNAL IS SP ECIFICALLY EMPOWERED TO DISPOSE OF THE CASE FOR NON-PROSECUTION UNDER TH E PROVISIONS OF RULE 24 AND 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RU LES, 1963. IT IS ALSO PERTINENT TO NOTE THAT THIS TRIBUNAL HAS NO P OWER TO ENHANCE THE ASSESSMENT MADE BY THE ASSESSING OFFICER. AT THE B EST, THIS TRIBUNAL CAN CONFIRM THE ORDER OF THE LOWER AUTHORITY OR SET ASIDE THE ORDER OF THE LOWER AUTHORITY. BEYOND THAT THIS TRIBUNAL CAN NOT ENHANCE THE ASSESSMENT. THEREFORE, MERELY BECAUSE THIS TRIBUNA L DISMISSED THE APPEAL FOR NON-PROSECUTION, SUCH A POWER CANNOT BE CONFERRED ON THE CIT(A) UNLESS AND UNTIL IT IS SPECIFICALLY PROVIDED IN THE INCOME-TAX ACT OR RULES MADE THEREUNDER. IT IS AN ADMITTED FACT T HAT THE CIT(A) IS NOT EMPOWERED TO DISMISS THE APPEAL FOR NON-PROSECUTION . THE CIT(A) ITA NO.1850/15 :- 4 -: BEING A SENIOR MOST OFFICER OF THE DEPARTMENT AND E XERCISING THE POWER OF THE FIRST APPELLATE AUTHORITY, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT HE IS EXPECTED TO CALL FOR THE RECORDS OF THE ASSESSING OFFICER AS SOON AS AN APPEAL IS FILED BEF ORE HIM AND CONSIDER THE MATERIAL AVAILABLE AND THEREAFTER DECIDE THE SA ME IN ACCORDANCE WITH LAW. MERELY BECAUSE THE ASSESSEE FAILED TO A PPEAR BEFORE THE CIT(A) THAT DOES NOT ENABLE THE CIT(A) TO DISMISS T HE APPEAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SUCH A P OWER TO DISMISS THE APPEAL FOR NON-PROSECUTION WAS NOT CONFERRED ON THE CIT(A) UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961. IF THE CIT(A) I S PERMITTED TO DISMISS THE APPEAL FOR NON-PROSECUTION THEN THE POW ER TO ENHANCE THE ASSESSMENT WOULD BE DEFEATED. THEREFORE, IRRESPECT IVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE THE CIT(A) OR NOT THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS TO CALL FOR THE RECORDS OF THE ASSESSING OFFICER AND EXAMINE THE SAME AND T HEREAFTER DECIDE THE APPEAL IN ACCORDANCE WITH LAW. SINCE SUCH AN E XERCISE WAS NOT DONE BY THE CIT(A), WE SET ASIDE THE ORDER OF THE CIT(A) AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BA CK TO THE FILE OF THE CIT(A). THE CIT(A) SHALL CALL FOR THE RECORDS OF T HE ASSESSING OFFICER, EXAMINE THE ISSUE RAISED BY THE ASSESSEE AND THERE AFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONAB LE OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THAT IN CASE THE A SSESSEE FAILS TO ITA NO.1850/15 :- 5 -: APPEAR BEFORE THE CIT(A), IT IS OPEN TO THE CIT(A) TO DISPOSE OF THE APPEAL ON MERIT ON THE BASIS OF THE MATERIAL AVAILA BLE BEFORE HIM AFTER CALLING FOR THE RECORDS OF THE ASSESSING OFFICER. 5. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER, 2015, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 20 TH NOVEMBER, 2015 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF