Prince Holdings (Madras) P Ltd., CHENNAI V. DCIT Corporate Circle 5(2), CHENNAI

ITA 2361/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5586 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RU GEORGE
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2361/MDS/2017 ' (' / ASSESSMENT YEAR : 2009-10 M/S PRINCE HOLDINGS (MADRAS) PVT. LTD., COROMANDEL TOWERS, NO.93, SANTHOME HIGH ROAD, R.A. PURAM, CHENNAI - 600 028. PAN : AAACP 4357 L V. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 5(2), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. N. DEVANATHAN, ADVOCATE ,-*+ . / / RESPONDENT BY : SMT. RUBY GEORGE, CIT 0 . 1$ / DATE OF HEARING : 12.12.2017 2!( . 1$ / DATE OF PRONOUNCEMENT : 28.12.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -3, CHENNA I, DATED 30.06.2017 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2 I.T.A. NO.2361/MDS/17 2. THERE IS A DELAY OF 13 DAYS IN FILING THE APPEAL BY THE ASSESSEE. THE ASSESSEE HAS FILED APPLICATION FOR C ONDONATION OF DELAY. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSE E AND THE LD. DEPARTMENTAL REPRESENTATIVE, WE FIND THAT THERE WAS SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE FOR NOT FILING TH E APPEAL WITHIN THE TIME LIMIT. THEREFORE, THE DELAY OF 13 DAYS IS CON DONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED. 3. HAVING HEARD SH. N. DEVANATHAN, THE LD.COUNSEL F OR THE ASSESSEE AND SMT. RUBY GEORGE, THE LD. DEPARTMENTAL REPRESENTATIVE, WE FIND THAT THE CIT(APPEALS) HAS D ISMISSED THE APPEAL WITHOUT GOING INTO THE MERITS. THIS TRIBUNA L IS OF THE CONSIDERED OPINION THAT WHEN AN APPEAL IS FILED BY THE ASSESSEE, THE CIT(APPEALS) HAS NO POWER TO DISMISS THE APPEAL FOR NON- PROSECUTION. THE DECISION OF DELHI BENCH OF THIS T RIBUNAL IN CIT V. MULTIPLAN INDIA (P.) LTD. (1991) 38 ITD 320, REFERR ED BY THE CIT(APPEALS), IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE. THE CASE OF THE ASSESSEE IN MULTIPLAN INDIA (P.) LTD. ( SUPRA) WAS AN APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE TRIBUNAL FOUND THAT SINCE THERE WAS DEFECT IN FILING THE APP EAL, IT HAS TO BE TREATED AS NOT ADMITTED OR NOT TAKEN ON FILE. SUCH A PROCEDURE AS 3 I.T.A. NO.2361/MDS/17 LAID DOWN IN MULTIPLAN INDIA (P.) LTD. (SUPRA) IS N OT THERE IN FILING APPEAL BEFORE THE CIT(APPEALS). 4. WHEN THE ASSESSEE FILES AN APPEAL, IF AT ALL THE RE IS ANY DEFECT, THE SAME HAS TO BE POINTED OUT TO THE ASSES SEE AND SUFFICIENT OPPORTUNITY SHOULD BE GIVEN TO THE ASSES SEE TO RECTIFY THE SAME. ONCE THE DEFECT WAS RECTIFIED, THE CIT(APPEA LS) BEING A SENIOR MOST OFFICER IN THE DEPARTMENT, IS EXPECTED TO DISPOSE THE APPEAL ON MERIT. IN CASE THE CIT(APPEALS) IS ALLOW ED TO DISMISS THE APPEAL FOR NON-PROSECUTION, THE POWER CONFERRED UND ER THE SCHEME OF INCOME-TAX ACT TO ENHANCE THE ASSESSMENT WOULD B E DEFEATED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT UND ER THE SCHEME OF INCOME-TAX ACT, THE CIT(APPEALS) HAS JURISDICTION C OTERMINOUS TO THAT OF THE ASSESSING OFFICER AND WHATEVER THE ASSE SSING OFFICER FAILED TO DO CAN ALSO BE DONE BY THE CIT(APPEALS) I N THE COURSE OF EXERCISING HIS APPELLATE JURISDICTION. IF THE CIT( APPEALS) SIMPLY DISMISSES THE APPEAL FOR NON-PROSECUTION, THEN THE POWER CONFERRED UNDER THE SCHEME OF THE INCOME-TAX ACT WOULD BE MEA NINGLESS. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE CIT(APPEALS) HAS NO AUTHORITY OR JURISDICTION TO DI SMISS THE APPEAL FOR NON-PROSECUTION. IN CASE THE ASSESSEE FAILS TO APPEAR, IT IS UPTO THE CIT(APPEALS) TO CALL FOR RECORDS FROM THE CONCE RNED ASSESSING 4 I.T.A. NO.2361/MDS/17 OFFICER AND PASS A SPEAKING ORDER ON MERIT. THE CI T(APPEALS) CANNOT DISOWN HIS RESPONSIBILITY BY DISMISSING THE APPEAL FOR NON- PROSECUTION. THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDER OF THE CIT(APPEALS). 5. ACCORDINGLY, THE ORDER OF THE CIT(APPEALS) IS SE T ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK TO THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) IS HEREBY DIREC TED TO DISPOSE THE APPEAL ON MERIT. IT IS MADE CLEAR THAT IF THE ASSESSEE FAILS TO APPEAR BEFORE THE CIT(APPEALS) AFTER GIVING SUFFICI ENT OPPORTUNITY, IT IS OPEN TO THE CIT(APPEALS) TO CALL FOR RECORDS FRO M THE CONCERNED ASSESSING OFFICER AND PASS A SPEAKING ORDER ON MERI T IN EXERCISE OF POWER CONFERRED ON HIM UNDER THE SCHEME OF THE INCO ME-TAX ACT. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 TH DECEMBER, 2017 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 28 TH DECEMBER, 2017. KRI. 5 I.T.A. NO.2361/MDS/17 . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-3, CHENNAI 4. PRINCIPAL CIT, CHENNAI-5 5. 69 ,1 /DR 6. :' ; /GF.