Anil Kumar Ojha, CHENNAI V. DCIT, CHENNAI

ITA 189/CHNY/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7427 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B NANDHA KUMAR
• Assessee Lawyers: T BANUSEKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER I.T.A. NO. 189/MDS/2012 (ASSESSMENT YEAR : 2005-06) SHRI ANIL KUMAR OJHA, NO.403-D, THIRUVOTRIYUR HIGH ROAD, CHENNAI - 600 019. PAN : AAAPO3149C (APPELLANT) V. THE DEPUTY COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE X, CHENNAI - 600 034 . (RESPONDENT) APPELLANT BY : SHRI T. BANUSEKAR RESPONDENT BY : SHRI B. NANDHA KU MAR, JCIT DATE OF HEARING : 28.03.2012 DATE OF PRONOUNCEMENT : 28.03.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE ASSESSEE, HIS GRIEVAN CE IS THAT CIT(APPEALS) DECLINED TO ENTERTAIN THE APPEAL OF TH E ASSESSEE ON MERITS AND DISMISSED IT FOR NON-PROSECUTION. 2. WE FIND THAT THERE IS A LETTER FILED BY THE ASSE SSEE WHEREBY HE OBJECTED TO A NOTICE FROM THE REGISTRY REGARDING SH ORT PAYMENT OF I.T.A. NO. 189/MDS/12 2 FEES. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL WAS DISMISSED BY THE CIT(APPEALS) ONLY ON THE GROUND OF NON-APPEARANCE AND NOT ON MERITS. THEREFORE, AS PER THE ASSESSEE, THE FEES AS PER CLAUSE (D) OF SECTION 253(6) OF INCOME-TAX ACT, 196 1 (IN SHORT 'THE ACT') WAS ONLY ` 500/-. IN SUPPORT, LEARNED COUNSEL HAS FILED A DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CAS E OF RAJAKAMAL POLYMERS (P) LTD. V. CIT (291 ITR 314) AND ALSO A D ECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF DR. AJITH KUMAR PAN DEY V. ITAT (310 ITR 195). 3. WE FIND THAT CIT(APPEALS) HAD DISMISSED THE ASSE SSEES APPEAL FOR NON-PROSECUTION AND HAD NOT CONSIDERED T HE ISSUE ON MERITS. IN OUR OPINION, IN SUCH A SITUATION, THE F EES PAID HAS TO BE AS PER CLAUSE (D) OF SECTION 253(6) OF THE ACT. THE A SSESSEE HAS RIGHTLY PAID THE SUM OF ` . 500/- AS STIPULATED IN THE SAID CLAUSE OF THE ACT . IN THE CASE OF RAJAKAMAL POLYMERS (P) LTD. (SUPRA), HO NBLE KARNATAKA HIGH COURT HAD HELD THAT WHEN AN APPEAL WAS REJECTE D BY THE CIT(APPEALS) ON THE GROUND OF LIMITATION, THE FEE P AYABLE FOR FURTHER APPEAL BEFORE THIS TRIBUNAL, WAS ONLY ` 500/- UNDER CLAUSE (D) OF SECTION 253(6) OF THE ACT. IN OUR OPINION, THERE IS NOT MUCH DIFFERENCE BETWEEN AN ORDER OF CIT(APPEALS) WHICH I S NOT ON MERITS, I.T.A. NO. 189/MDS/12 3 BUT DISMISSING AN APPEAL WHETHER ON ACCOUNT OF LIMI TATION OR ON ACCOUNT OF NON-APPEARANCE OF THE PARTIES. IN THIS VIEW OF THE MATTER, WE ADMIT THE APPEAL OF THE ASSESSEE. 4. WE FIND THAT THE CIT(APPEALS) HAD NOT ADJUDICATE D THE ISSUES ON MERITS BUT HAD DISMISSED IT FOR NON-PROSECUTION. NO DOUBT, THE ASSESSEE MIGHT HAVE BEEN GIVEN OPPORTUNITY TO ENTER APPEARANCE, BUT IT HAD FAILED TO DO SO. NEVERTHELESS, WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S QUESTNET ENTERPRISES INDIA PRIVATE LIMITED V. ACIT IN I.T.A. NOS. 1821 & 1822/ MDS/2011 HAD CONSIDERED A SIMILAR ISSUE. IN ITS ORDER DATED 18 TH JANUARY, 2012, THIS TRIBUNAL HELD AT PARA 4 AS UNDER:- 4. WE HAVE HEARD THE CONTENTIONS. APPEAL BEFORE CIT(APPEALS) UNDER SECTION 246A OF INCOME-TAX ACT , 1961 (IN SHORT 'THE ACT') IS A STATUTORY RIGHT GIVEN TO AN A SSESSEE. AS PER SUB-SECTION (6) OF SECTION 250 OF THE ACT, WHICH PR ESCRIBES THE PROCEDURE TO BE FOLLOWED BY A CIT(APPEALS), AN ORDE R OF CIT(APPEALS) DISPOSING OF AN APPEAL SHALL BE IN WR ITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION TA KEN THEREON AND REASONS FOR THE DECISION. IN OTHER WORDS, THER E IS NO POWER VESTED ON CIT(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, HER E, ASSESSEE HAD FILED AN APPLICATION FOR ADJOURNMENT ON 28 TH OCTOBER, 2011 AND NOTHING WAS MENTIONED BY CIT(APPEALS) ON SUCH ADJO URNMENT PETITION. WE ARE, THEREFORE, OF THE OPINION THAT T HE MATTER HAS TO GO BACK TO CIT(APPEALS) FOR CONSIDERATION AFRES H FOR BOTH THE YEARS. WE, THEREFORE, SET ASIDE THE ORDER OF C IT(APPEALS) FOR BOTH THE YEARS AND REMIT IT BACK TO HIM FOR CON SIDERATION DE I.T.A. NO. 189/MDS/12 4 NOVO IN ACCORDANCE WITH LAW, AFTER GIVING DUE OPPOR TUNITY TO THE ASSESSEE FOR PRESENTING ITS CASE. 5. WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY CO-OR DINATE BENCH OF THIS TRIBUNAL AND HOLD THAT THE CIT(APPEALS) WAS OBLIGED TO CONSIDER THE CASE ON MERITS AND COULD NOT DISMISS F OR WANT OF PROSECUTION. WE SET ASIDE THE ORDER OF LD. CIT(APP EALS) AND REMIT THE APPEAL BACK TO HIM FOR CONSIDERATION DENOVO IN ACCO RDANCE WITH LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE FOR PRESEN TING HIS CASE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 28 TH MARCH, 2012. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 28 TH MARCH, 2012. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-IV, CHENNAI-34 (4) CIT-IX, CHENNAI (5) D.R. (6) GUARD FILE