Omne Agate Systems Private Ltd., CHENNAI V. DCIT, CHENNAI

ITA 2093/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58106 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 16-03-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 21-12-2011
• Court: TRIBUNAL
• Assessee Lawyers: N VIJAY KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NOS.2093, 2094 & 2095(MDS)/2011 ASSESSMENT YEARS: 2005-06, 2006-07 & 2008-09 AND S.P. NOS.43 TO 45(MDS)/2012 IN ITA NOS.2093 TO 2095(MDS)/2011 M/S. OMNE AGATE SYSTEMS PVT. LTD., 99-MURUGESA NAICKER OFFICE COMPLEX, GREAMS ROAD, CHENNAI-6. PAN AAAACO3548G. VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE V(1), CHENNAI. (APPELLANT/PETITIONER) (RESPONDENT) APPELLANT BY : SHRI N.VIJAY KUMAR, C.A. RESPONDENT BY: SHRI G.NARESHKUMAR, JT.COMMIS SIONER OF IT DATE OF HEARING : 16 TH MARCH, 2012 DATE OF PRONOUNCEMENT : 16 TH MARCH, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THESE THREE APPEALS ARE FILED BY THE ASSESSEE. T HE RELEVANT ASSESSMENT YEARS ARE 2005-06, 2006-07 AND 2008-09. THESE APPEALS ARE DIRECTED AGAINST THE ORDERS OF TH E - - ITA 2093 TO 2095 OF 2011 2 COMMISSIONER OF INCOME-TAX(APPEALS)-V AT CHENNAI, D ATED 25-11-2011. THE APPEALS ARISE OUT OF THE ASSESSMEN TS COMPLETED UNDER SECTION 143(3), READ WITH SECTION 1 47; UNDER SECTION 143(3) AND UNDER SECTION 143(3) RESPECTIVEL Y. IN ALL THESE APPEALS, THE MAIN GRIEVANCE OF THE ASSESSEE I S THAT THE FIRST APPELLATE ORDERS WERE PASSED EX PARTE, WITHOU T GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE RELEVA NT GROUNDS, COMMON TO ALL THE APPEALS, ARE REPRODUCED BELOW:- 1. FOR THAT THE ORDER OF THE COMMISSIONER OF INCOM E- TAX(APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMST ANCES OF THE CASE AND AT ANY RATE IS OPPOSED TO THE PRINC IPLES OF EQUITY, NATURAL JUSTICE AND FAIR PLAY. 2. FOR THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) FAILED TO APPRECIATE THAT THE ORDER OF THE ASSESSIN G OFFICER IS WITHOUT JURISDICTION. 3. FOR THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN DISMISSING THE APPEAL EX PARTE WITHOUT OFF ERING ADEQUATE OPPORTUNITY TO THE APPELLANT. - - ITA 2093 TO 2095 OF 2011 3 4. FOR THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) FAILED TO APPRECIATE THE REASONS GIVEN BY THE APPEL LANT FOR SEEKING ADJOURNMENT WHEN THE CASE WAS POSTED FO R HEARING. 5. FOR THAT THE ASSESSMENT WAS REOPENED BASED ON A SWORN STATEMENT RECORDED FROM AN EMPLOYEE OF THE APPELLANT COMPANY AND THE INVESTIGATION REPORT OF T HE ADIT(INV) UNIT-I(2), GUWAHATI, OBTAINED DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2006-07, THE COPIES OF WHICH WERE NOT GIVEN TO THE APPELLANT BY THE ASSESSING OFFICER. 6. FOR THAT THE APPELLANT HAD REQUIRED COPIES OF TH E SAME TO PRESENT ITS CASE AND TO PREPARE THE WRITTEN SUBMISSIONS BEFORE THE COMMISSIONER OF INCOME- TAX(APPEALS). 7. FOR THAT THE APPELLANT WAS IN THE PROCESS OF OBT AINING A COPY OF THE SWORN STATEMENT AND THE INVESTIGATION REPORT AND HENCE HAD SOUGHT ADJOURNMENT. - - ITA 2093 TO 2095 OF 2011 4 8. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MA Y BE ADDUCED BEFORE OR DURING THE HEARING OF THE APPE AL, IT IS PRAYED THAT THE HONBLE TRIBUNAL MAY BE PLEAS ED TO: (I) DIRECT THE COMMISSIONER OF INCOME-TAX(APPEALS) TO HEAR THE APPEAL ON MERITS AND DISPOSE ACCORDINGLY (II) PASS SUCH OTHER ORDERS AS THE HONBLE TRIBUNAL MAY DEEM FIT. 2. WE HEARD SHRI N.VIJAY KUMAR, THE CHARTERED ACCOUNTANT APPEARING FOR THE ASSESSEE, AND SHRI G.NARESHKUMAR, THE LEARNED JOINT COMMISSIONER OF IN COME-TAX, APPEARING FOR THE REVENUE. 3. IT IS TRUE THAT THE COMMISSIONER OF INCOME- TAX(APPEALS) HAS PROVIDED A SERIES OF OPPORTUNITIES TO THE ASSESSEE TO PRESENT ITS CASE BEFORE HIM. THE ASSES SEE WAS PREVENTED FROM PROSECUTING THE APPEALS BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS) BY SUFFICIENT R EASONS INCLUDING THE DEMISE OF MOTHER OF THE AUTHORIZED RE PRESENTATIVE. SO ALSO, IT IS SEEN THAT THE COMMISSIONER OF INCOME -TAX(APPEALS) HAS DISMISSED THE APPEALS IN LIMINE, WITHOUT EXAMINING THE - - ITA 2093 TO 2095 OF 2011 5 MERITS OF THE GROUNDS RAISED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM. THIS IS NO T PROPER IN LAW. THE COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE DISPOSED OF THE APPEALS FILED BY THE ASSESSEE ONLY ON MERITS, EVEN IF THEY ARE EX PARTE ORDERS. 4. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE ORDERS OF THE COMMISSIONER OF INCOME-TAX( APPEALS) ARE SET ASIDE AND THE CASES ARE REMITTED BACK TO HI M TO DISPOSE OF THE APPEALS ON MERITS. THE COMMISSIONER OF INCO ME- TAX(APPEALS) SHALL DEFINITELY GIVE AN EFFECTIVE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. THE ASSESSEE HAS ALSO FILED STAY PETITIONS IN R ESPECT OF THESE APPEALS. THE ASSESSEE IS DIRECTED TO PAY ` 30 LAKHS FOR THE ASSESSMENT YEAR 2005-06; ` 5 LAKHS FOR THE ASSESSMENT YEAR 2006-07 AND ` 15 LAKHS FOR THE ASSESSMENT YEAR 2008-09, TOTALING TO ` 50 LAKHS. THE AMOUNT SHALL BE PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT ON OR BEFORE 27 TH MARCH, 2012. THESE STAY PETITIONS ARE DISPOSED OF ON THE ABOVE LINES. - - ITA 2093 TO 2095 OF 2011 6 6. STAY IS GRANTED TILL 31 ST AUGUST, 2012 OR TILL THE REMANDED APPEALS ARE DISPOSED OF BY THE COMMISSIONE R OF INCOME-TAX(APPEALS), WHICHEVER IS EARLIER. 7. IN RESULT, THE APPEALS ARE ALLOWED FOR STATISTI CAL PURPOSES AND THE STAY PETITIONS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 16 TH OF MARCH, 2012 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 16 TH MARCH, 2012. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.