BHAGAVATHY, CHENNAI V. ITO NON CORPORATE WARD-13(2), CHENNAI

ITA 1982/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5734 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 02-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRINIRANJANI
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , ! ' , $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.1982/CHNY/2019 ( )( / ASSESSMENT YEAR : 2012-13 SMT. BHAGAVATHY, 20/2, THIRUNAGAR 1 ST STREET, VADAPALANI, CHENNAI. PAN : AFQPB 1875 D V. THE INCOME TAX OFFICER, NON CORPORATE WARD 13(2), CHENNAI - 600 034. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : MS. S. SRINIRANJANI, ADVOCATE -.+, / 0 / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 1 / 2$ / DATE OF HEARING : 12.09.2019 34) / 2$ / DATE OF PRONOUNCEMENT : 01.10.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -7, CHENNA I, DATED 30.03.2019 AND PERTAINS TO ASSESSMENT YEAR 2012-13. 2. MS. S. SRINIRANJANI, THE LD.COUNSEL FOR THE ASSE SSEE, SUBMITTED THAT THE ASSESSEE IS ENGAGED HERSELF IN T HE BUSINESS OF CIVIL CONSTRUCTION. DURING THE COURSE OF BUSINESS ACTIVITY, ACCORDING 2 I.T.A. NO.1982/CHNY/19 TO THE LD. COUNSEL, THE ASSESSEE INCURRED EXPENDITU RE TO THE EXTENT OF 48,37,490/- TOWARDS LAND DEVELOPMENT AND PURCHASE O F MATERIALS. ACCORDING TO THE LD. COUNSEL, THE LABOU R CHARGES WERE PAID ONCE IN A WEEK AS LUMP SUM TO THE SITE SUPERVI SOR WHO, IN TURN, PAID TO ALL THE LABOURERS, THEREFORE, THERE WAS NO PAYMENT EXCEEDING 20,000/- IN A DAY. ACCORDING TO THE LD. COUNSEL, E ACH PAYMENT DOES NOT EXCEED 20,000/-. MOREOVER, THE ANNUAL PAYMENTS WERE NOT EXCEEDING 50,000/- FOR EACH LABOUR. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) IS NOT CORRECT IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER. REFERRING TO THE O RDER OF THE CIT(APPEALS), THE LD.COUNSEL SUBMITTED THAT THE CIT (APPEALS) HAS NOT APPLIED HIS MIND TO THE MATERIAL AVAILABLE ON R ECORD AND HE HAS SIMPLY DISMISSED THE APPEAL OF THE ASSESSEE. THERE FORE, THE LD.COUNSEL SUBMITTED THAT THE MATTER MAY BE REMITTE D BACK TO THE FILE OF THE CIT(APPEALS). 3. WE HEARD SHRI AR.V. SREENIVASAN, THE LD. DEPARTM ENTAL REPRESENTATIVE ALSO. WE HAVE CAREFULLY GONE THROUG H THE ORDER OF THE CIT(APPEALS). THE CIT(APPEALS) HAS DISMISSED T HE APPEAL ON THE GROUND THAT THERE IS NO FURTHER MATERIAL AVAILA BLE EITHER BY WAY OF EXPLANATORY NOTES OR SUBMISSIONS TO REBUT THE A.O. S FINDINGS. 3 I.T.A. NO.1982/CHNY/19 PRESUMABLY, THE CIT(APPEALS) DISMISSED THE APPEAL F OR NON- PROSECUTION. UNDER THE SCHEME OF INCOME-TAX ACT, T HE CIT(APPEALS) HAS NO AUTHORITY TO PASS ORDER DISMIS SING THE APPEAL FOR NON-PROSECUTION. THE POWER OF THE CIT(APPEALS) IS COTERMINOUS WITH THAT OF THE ASSESSING OFFICER. THERE IS A SPE CIFIC POWER CONFERRED ON THE CIT(APPEALS) TO ENHANCE THE ASSESS MENT MADE BY THE ASSESSING OFFICER. THEREFORE, THERE IS AN ONER OUS RESPONSIBILITY CAST ON THE CIT(APPEALS) TO CALL FOR RECORDS FROM T HE ASSESSING OFFICER, RE-EXAMINE THE MATTER AND DISPOSE THE APPE AL ON MERIT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEA RED BEFORE HIM OR NOT. 4. IN THIS CASE, THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(APPEALS). THE CIT(APPEALS) DISMISSED THE APPEA L ON THE GROUND THAT THERE IS NO FURTHER MATERIAL AVAILABLE EITHER BY WAY OF EXPLANATORY NOTES OR SUBMISSIONS TO REBUT THE A.O. S FINDINGS. OBVIOUSLY, THE CIT(APPEALS) HAS NOT TAKEN ANY PAIN OF CALLING FOR RECORDS FROM THE ASSESSING OFFICER TO RE-EXAMINE TH E MATTER AS REQUIRED UNDER THE SCHEME OF INCOME-TAX ACT. THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT THIS KIND OF ATTITUDE ON TH E PART OF THE CIT(APPEALS) CANNOT BE ALLOWED TO CONTINUE. IN OTH ER WORDS, THE 4 I.T.A. NO.1982/CHNY/19 CIT(APPEALS) IS EXPECTED TO DISPOSE THE APPEAL ON M ERIT BY WAY OF SPEAKING ORDER ON THE ISSUES ARISING FOR CONSIDERAT ION IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE HIM O R NOT. SINCE SUCH AN EXERCISE WAS NOT DONE BY THE CIT(APPEALS), THE ORDER OF THE CIT(APPEALS) IS SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK TO THE FILE OF THE CIT(AP PEALS). THE CIT(APPEALS) SHALL RE-EXAMINE THE MATTER IN THE LIG HT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DE CIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASO NABLE OPPORTUNITY TO THE ASSESSEE. 5. IT IS MADE CLEAR THAT IF THE ASSESSEE HAS NOT AP PEARED BEFORE THE CIT(APPEALS) AFTER RECEIVING THE NOTICE OF HEAR ING, IT IS OPEN TO THE CIT(APPEALS) TO CALL FOR RECORDS FROM THE ASSES SING OFFICER AND RE-EXAMINE THE SAME AND PASS ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IT IS NEEDLESS TO POINT OUT T HAT THE CIT(APPEALS) HAS TO PASS A SPEAKING ORDER BY GIVING REASON FOR T HE CONCLUSION REACHED IN THE ORDER. 6. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 I.T.A. NO.1982/CHNY/19 ORDER PRONOUNCED IN THE COURT ON 1 ST OCTOBER, 2019 AT CHENNAI. SD/- SD/- ( ! ' ) ( . . . ) (INTURI RAMA RAO) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 1 ST OCTOBER, 2019. KRI. / -278 98)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 :2 () /CIT(A)-7, CHENNAI 4. PRINCIPAL CIT- 10, CHENNAI 5. 8; -2 /DR 6. <( = /GF.