M/s. Shrijee Developers Ltd., CHENNAI V. ITO, CHENNAI

ITA 233/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61078 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHAND AE SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI (BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI V.DURGA RAO, JUDICIAL MEMBER ) .. W.T.A. NO. 04/MDS/2012 ASSESSMENT YEAR : 2001-02 I.T.A. NO.233 /MDS/2012 ASSESSMENT YEAR : 2003-04 M/S. SHRIJEE DEVELOPERS LTD., 12,JEYPORE COLONY, PADMAVATHIYAR ROAD, GOPALAPURAM, CHENNAI 600 086. PAN : AABCS 0196 H (APPELLANT) V. INCOME TAX OFFICER, COMPANY WARD VI(1), CHENNAI. (RESPONDENT) APPELLANT BY : SHRI PHILIP GEORGE ADVOCATE RESPONDENT BY : SHRI MAHAND AE SINGH DR DATE OF HEARING : 08.05. 12 DATE OF PRONOUNCEMENT : 08.05.12 O R D E R PER N.S.SAINI, ACCOUNTANT MEMBER : THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST T HE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (A)-V, CHENNAI DATED 25.11.2011. ITA NO. 233/MDS/12 WTA NO.04/MDS./12 2 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: WTA NO.04/MDS/12 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) V IS OPPOSED TO LAW, AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. NON APPEARANCE: 2.1. THE COMMISSIONER OF INCOME TAX(A) ERRED IN DIS MISSING THE APPEAL EXPARTE AND IN LIMINE. 2.2. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E APPRECIATED THAT THE APPELLANT HAD VALID AND PROPER REASONS FOR THE NON ATTENDANCE. 2.3. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E DECIDED THE ISSUE ON MERITS.. 3. MERITS: 3.1. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E APPRECIATED THAT THE ASSESSING OFFICER HAD ERRED IN MAKING A PROTECTIVE ASSESSMENT, ESPECIALLY WHEN THE ASSESS ING OFFICER HAD HELD THAT THE VADAPALANI LAND WAS A BUS INESS ASSET. 3.2. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E HELD THAT THE ASSESSING OFFICER HAD ERRED IN DISALLOWING THE LIABILITIES CLAIMED. ITA NO. 233/MDS/12 WTA NO.04/MDS./12 3 4. THE APPELLANT CONTESTS ALL THE FINDINGS OF FACT AND LAW MADE BY THE COMMISSIONER OF INCOME TAX (A) AGAINST THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GR OUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. ITA NO.233/MDS/12 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) V IS OPPOSED TO LAW, AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. NON APPEARANCE: 2.1. THE COMMISSIONER OF INCOME TAX(A) ERRED IN DIS MISSING THE APPEAL EXPARTE AND IN LIMINE. 2.2. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E APPRECIATED THAT THE APPELLANT HAD VALID AND PROPER REASONS FOR THE NON ATTENDANCE. 2.3. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAV E DECIDED THE ISSUE ON MERITS. 3. MERITS: 3.1. DISALLOWANCE OF CLAIM OF CAPITAL LOSS: 3.1.1. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO H AVE HELD THAT THAT SALE PROCEEDS OF THE LAND AT VADAPALANI LAND OUGHT TO HAVE BEEN COMPUTED UNDER THE HEAD CAPITAL GAINS. 3.1.2. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ALLOW THE CAPITA L LOSS CLAIMED. ITA NO. 233/MDS/12 WTA NO.04/MDS./12 4 3.2. DISALLOWANCE OF ADVANCES WRITTEN OFF: 3.2.1. THE COMMISSIONER OF INCOME TAX(A) OUGHT TO H AVE HELD THAT THE APPELALNT WAS ENTITLED TO CLAIM THE DEDUCT ION OF ` 36,03,911/- BEING THE AMOUNT OF ADVANCES WRITTEN OF F. 3.2.2.. THE COMMISSIONER OF INCOME TAX(A) OUGHT T O HAVE APPRECIATED AND HELD THAT THE CASE LAW CITED BY THE ASSESSING OFFICER WERE ALL DISTINGUISHABLE AND NOT APPLICABLE TO THE APPELLANTS CASE. 4. THE APPELLANT CONTESTS ALL THE FINDINGS OF FACT AND LAW MADE BY THE COMMISSIONER OF INCOME TAX(A) AGAINST THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GR OUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. IT IS OBSERVED THAT THE COMMISSIONER OF INCOME TAX(A) HAS DISMISSED THE APPEALS OF THE ASSESSEE ON THE GROUN D THAT THE APPEALS WERE FIXED FOR HEARING ON 31.10.07, 12.02.0 8, 27.11.07,12.2.08, 7.10.10, 20.10.10 & 09.11.11. TH E ASSESSEE FILED ADJOURNMENT LETTER ON 31.10.07 BUT NONE APPEARED ON THAT DATE. THE COMMISSIONER OF INCOME TAX(A) HAS FURTHER OBSERVED THAT NONE ATTENDED EVEN ON OTHER SPECIFIED DATES AND THEREFO RE, HE DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION. ITA NO. 233/MDS/12 WTA NO.04/MDS./12 5 4. THE AUTHORISED REPRESENTATIVE OF ASSESSEE SUBMI TTED THAT THE PERSON LOOKING AFTER THE ACCOUNTS AND TAX MATTERS O F THE COMPANY WAS SERIOUSLY ILL AND HENCE, COULD NOT BE PRESENT O N THE DATE OF HEARING FIXED. HE SUBMITTED THAT IN THE INTEREST O F JUSTICE ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO P RESENT ITS CASE BEFORE THE COMMISSIONER OF INCOME TAX(A). AR ALSO SUBMITTED IN THE COURT THAT HE UNDERTAKES THE RESPONSIBILITY TO APPEAR BEFORE THE COMMISSIONER OF INCOME TAX(A) AND TO FILE THE REQUI RED DETAILS AND DOCUMENTS IN CONNECTION WITH THE APPEAL. 5. DEPARTMENTAL REPRESENTATIVE (DR) DID NOT HAVE A NY OBJECTION TO THE ABOVE SUBMISSION OF THE AR. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSIN G THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RE CORD, WE FIND THAT COMMISSIONER OF INCOME TAX(A) DISMISSED THE APPEALS OF THE ASSESSEE FOR WANT OF PROSECUTION AS NONE APPEARED ON THE DATE FIXED FOR HEARING AND NEITHER ADJOURNMENT APPLICATI ON WAS FILED. IN OUR CONSIDERED OPINION THE COMMISSIONER OF INCOME T AX(A) IS A QUASI-JUDICIAL AUTHORITY AND IT IS A SETTLED PROPO SITION OF LAW THAT A QUASI-JUDICIAL AUTHORITY SHOULD DISPOSE OF THE APPE AL OF THE ASSESSEE ITA NO. 233/MDS/12 WTA NO.04/MDS./12 6 ON MERITS ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD EVEN IN A CASE WHERE THE ASSESSEE FAILS TO PUT IN APPEARANC E ON THE DATE OF HEARING FIXED BY HIM SO THAT THE ASSESSEE IS ABLE TO MEET ITS CASE IN APPEAL BEFORE A HIGHER FORUM. HENCE, WE ARE OF TH E CONSIDERED OPINION THAT THE DISMISSAL OF APPEAL BY THE COMMISS IONER OF INCOME TAX(A) WAS NOT PROPER AND JUSTIFIED. WE ,THEREFORE , SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) AND REMA ND THE MATER BACK TO HIS FILE TO DISPOSE OF THE APPEAL OF THE AS SESSEE ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON TUESDAY, THE EIGHTH MAY, 2012 AT CHENNAI. SD/- SD/- ( V.DURGA RAO) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 8 TH MAY, 2012. K S SUNDARAM. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE ITA NO. 233/MDS/12 WTA NO.04/MDS./12 7