SHRI K.G. SRINIVASAN, CHENNAI V. ITO, NCW - 8 (2), CHENNAI

ITA 2128/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0510 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 18-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R ANITA
• Assessee Lawyers: S SRIDHAR
• Keywords: Opportunity of being heard; Set aside
• Section: 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN , ACCOUNTANT MEMBER ./ ITA NO. 2128 /CHNY/ 201 9 / ASSESSMENT YEAR: 20 09 - 10 SHRI K.G. SRINIVASAN, NO.14/15, RATHINAPURI RING ROAD, KOYAMBEDU, CHENNAI 600 107 [PAN: AFUPS 5572A ] VS. THE INCOME TAX OFFICER NON - CORPORATE WARD - 8 (2), CHENNAI 600 034 ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. S. SRIDHAR , ADV OCATE /RESPOND ENT BY : M S . R. ANITA , JCIT / DATE OF HEARING : 10 . 1 2 .2019 / DATE OF PRONOUNCEMENT : 10 .12 .2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEA RNED COMMIS SIONER OF INCOME TAX (APPEALS) - 9 , CHENNAI I N ITA NO. 15/ CIT(A) - 9 / 2016 - 17DATED 28.06.2019 FOR THE ASSESSMENT YEAR 20 09 - 1 0 . 2. SHRI S. SRIDHAR , ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND MS. R. ANITA , JCIT REPRE SENTED ON BEHALF OF THE R EV ENUE . ITA N O. 2128 / CHNY / 201 9 : - 2 - : 3 . IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE LEARNED CIT(A) ON ACCOUNT IN DELAY IN E - F ILING OF THE APPEAL. IT WAS A SUBMISSION THAT THE ISSUE WAS SQUARELY COVERED BY THE DEC ISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SOUTH INDIA BOTTLING COMPANY PRIVATE LIMITED IN I.T.A. NOS.710, 711 & 712/CHNY/2019 DATED 27.08.2019. IT WAS A SUBMISSION THAT THE ASSESSMENT ORDER WAS SERVED ON THE ASSESSEE ON 31.03.201 6. THE APPEAL WAS MANUALLY FILED ON 19.04.2016. THE SHOW - CAUSE NOTICE WAS ISSUED ON 17.08.2016. THE APPEAL WAS E - F ILED ON 02.08.2016 ITSELF. ON RECEIPT OF THE SHOW - CAUSE NOTICE, THE ASSESSEE HAD REPLIED VIDE LETTER DATED 28.08.2016 THAT THE APPEAL FILE D THROUGH E - FIL ING ON 02.08.2016 MAY BE CONSIDERED. IT WAS A PRAYER THAT THE DELAY IN FILING OF THE APPEAL BEFORE THE LEARNED CIT(A) MAY BE CONDONED AND THE LEARNED CIT(A) MAY BE DIRECTED TO DISPOSE OF THE APPEAL ON MERITS AFTER GRANTING THE ASSESSEE ADE QUATE OPPORTUNITY OF BEING HEARD. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER THE LEARNED ASSESSING OFFICER AND THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 6. A PERUSAL OF THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN CASE OF M/S. SOUTH INDIA BOTTLING COMPANY PRIVATE LIMITED SHOWS THAT THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LEARNED CIT(A) UNDER SIMILAR ITA N O. 2128 / CHNY / 201 9 : - 3 - : CIRCUMSTANCES AND HAD DIRECTED THE LEAR NED CIT(A) TO ADJUDICATE ON MERITS WITH THE FOLLOWING FINDINGS: 7. A PERUSAL OF THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI D. SAIVENUGOPAL VS. INCOME TAX OFFICER, REFERRED TO SUPRA, SHOWS THAT THE CO - ORDINATE BENCH HAD FOLL OWED THE DECISION IN THE CASE OF SHRI GP SARAVANAN VS. INCOME TAX OFFICER IN I.T.A. NO.279/CHNY/2019 DATED 10.05.2019 HELD AS FOLLOWS: 6. A PERUSAL OF THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI G.P. SARAVANAN VS. INCOME TA X OFFICER, REFERRED TO SUPRA, WHEREIN, IT HAS BEEN HELD AS FOLLOWS: 4. HAVING HEARD THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. D.R., THIS TRIBUNAL FINDS THAT THE APPEAL WAS MANUALLY FILED ON 02.05.2016. IT IS NOT THE CASE OF THE REVENUE THAT ANY DEFECT MEMO WAS ISSUED OR THE APPEAL WAS RETURNED. WHEN THE APPEAL WAS FILED BY THE ASSESSEE MANUALLY, IF IT IS NOT TUNE WITH THE STATUTORY REQUIREMENT, IT IS FOR THE CIT(APPEALS) EITHER TO ISSUE A DEFECT MEMO OR TO RETURN THE APPEAL FILED MANUALLY, TO THE ASSE SSEE. ADMITTEDLY, NO SUCH ACTION WAS TAKEN BY THE CIT(APPEALS). THE APPEAL WAS EFILED ON 22.12.2018 . THEREFORE, THE TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE ADMITTEDLY, FILED THE APPEAL MANUALLY ON 02.05.2016 AND ALSO E - FILED ON 22.1 2.2018, THE ASSESSEES EFILING OF APPEAL WOULD RELATE BACK TO THE ORIGINAL DATE OF FILING APPEAL MANUALLY ON 02.05.2016. IN OTHER WORDS, THERE IS NO DELAY IN FILING THE APPEAL. IF E - FILING OF APPEAL ON 22.12.2018 RELATES BACK TO MANUAL FILING OF APPEAL ON 02.05.2016, THERE IS NO DELAY AT ALL. HENCE, THE CIT(APPEALS) OUGHT TO HAVE DISPOSED OF THE APPEAL ON MERIT. IN VIEW OF THE ABOVE, WE ARE UNABLE TO UPHOLD THE ORDERS OF THE AUTHORITIES BELOW. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET AS IDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) SHALL CONSIDER THE APPEAL ON MERIT AND DISPOSE THE SAME IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. RESPECTFULLY, FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI G.P. SARAVANAN VS. INCOME TAX OFFICER , REFERRED TO SUPRA, AS THE ASSESSEE HAS FILED ITS APPEAL MANUALLY ON 25.04.2016 AND HAS E - FILED THE SAME ON 12.01.2019, THE SAID E - FILED APPE AL WOULD IN FACT RELATE BACK TO THE DATE OF FILING OF THE APPEAL MANUALLY ON 25.04.2016. THIS BEING SO, WE ARE OF THE VIEW THAT THE ORDER OF THE LD. CIT(APPEALS) IS UNSUSTAINABLE AND CONSEQUENTLY, SET ASIDE THE SAME AND THE ISSUES IN THIS APPEAL ARE RESTO RED TO THE FILE OF THE LD. CIT(APPEALS) FOR ADJUDICATION ON MERITS. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. AS IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SOUTH INDIA BOTTLING COMPANY PRIVATE LIMITED REFERRED TO SUPRA, THE ORDERS OF THE LEARNED CIT(A) ITA N O. 2128 / CHNY / 201 9 : - 4 - : ARE SET ASIDE AND THE ISSUES RAISED IN THE APPEAL ARE RESTORED TO THE FILE OF THE LEARNED CIT(A) TO ADJUDICATE ON MERITS. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH DECEMBER , 2019 IN CHENNAI. SD/ - ( . ) ( S. JAYARAMAN ) /ACCOUNTANT MEMBER / CHENNAI, / DATED: 10 TH DECEMBER , 2 019 . IA, SR. PS SD/ - ( ) ( GEORGE MATHAN) /JUDICIAL MEMBER / COPY TO: 1. / APPELLANT 2. / RESPONDENT 3. ( ) / CIT(A) 4. / CIT 5. / DR 6. / GF