Dr. (Late) S.Ashok Rep by Dr. Anisha Ashok, Legal Representative, CHENNAI V. ACIT Non Corporate Circle I(1), CHENNAI

ITA 25/CHNY/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7273 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 05-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Set aside
• Section: 13

Judgement Text

आयकर अपील य अ धकरण, ‘ए’ यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL , ‘A’ BENCH, CHENNAI ी महावीर संह, उपा य एवं ी जी. मंज ु नाथ, लेखा सद%य के सम BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER आयकर अपील सं./I . T. A. N o. 2 5/ C hn y/ 2 0 2 0 ( नधा रणवष / As s e s s m en t Ye a r : 20 13 - 1 4) Dr. Anisha Ashok, L/R of Dr. late S.Ashok, 121, G.N Chetty Road, T.Nagar, Chennai-600 017. V s The Assistant Commissioner of Income Tax, Non-Corporate Circle-I(1) Chennai-600 034. P AN: A AB PA 2 4 4 8 M (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओरसे/ Appellant by : Mr. Vikram Vijayaraghavan, Advocate यथ क ओरसे/Respondent by : Mr. AR.V.Sreenivasan, Addl.CIT स ु नवाईक तार ख/D a t e o f h e a r i n g : 10.11.2021 घोषणाक तार ख /D a t e o f P r o n o u n c e m e n t : 30.11.2021 आदेश / O R D E R Per G.MANJUNATHA, AM: This appeal filed by the assessee is directed against the order passed by the learned CIT(A)-2, Chennai dated 25.10.2019 and pertains to assessment year 2013-14. 2. The assessee has raised following grounds of appeal:- 1. The appellant submits that the order of the Commissioner of Income tax (Appeals)-2, Chennai 600034 in ITA No.88/CITA)-2/2016-17/Asst year 2013-14 dated 25/10/2019, relating to the Assessment year 2013-14, in the case of the appellant, is contrary to law, against the facts prevailing in the case of the appellant for the asst year under consideration and is against all canons of law equity and justice. 2. The appellant submits that the Learned Commissioner of Income tax (Appeals)- 2, Chennai 600034 should not have 2 ITA No 25/Chny/2020 dismissed the appeal under consideration exparte without considering the grounds or merits of the appeal for the reason that there was no representation either from the appellant or from the authorised Representative on the dates on which the above appeal was posted for a hearing. 3. The appellant submits that the details furnished in para 5 of the order appealed against clearly shows that the Authorised Representative of the appellant had appeared before the Commissioner of Income tax (Appeals)-2, Chennai 600 034 filed written submissions and sought adjournment by filing written requests and hence the CIT(A)- 2, Chennai -34 ought not to have come to a conclusion that there was no representation in the appeal proceedings. 4. The appellant submits that they were not aware that the above appeal was reposted for a hearing on 15/10/2019. There was no communication to the effect that the above appeal was posted for a hearing on 15/10/2019. 5. The appellant submits that the Learned CIT(A)-2, Chennai -34 ought to have taken note of the representation of the appellant to keep the appeal proceedings relating to the Asst year 2013-14 in abeyance, till the disposal of the appeal filed by the appellant on an identical issue for the Asst year 2010- 11 in the appellant’s own case and presently pending before ITAT ‘B’ Bench, Chennai -34 in ITA No.749/CHNY/2019 since an order for the Asst year 2010-11 would decide the issue for the Asst year 2013-14 also on merits. 6. The appellant submits that the Learned Income Tax Appellate Tribunal may be pleased to set aside the order presently under appeal, with a direction to the CIT(A)-2, Chennai to give adequate opportunity to the appellant to represent the merits of the grounds in the appeal filed by the appellant before him relating to the Asst year 2013-14 and to adjudicate the appeal on merits.” 3. Brief facts of the case are that the assessee is an individual and was Doctor by profession, ran hospital by name 3 ITA No 25/Chny/2020 & style of Laser & Laparoscopic Hospital and also derived income from house property, income from capital gains and other sources from interest and dividends. The case was selected for scrutiny under CASS and notice u/s.143(2) was issued on 02.09.2014, which was served on the assessee. The Assessing Officer has completed assessment u/s.143(3) of the Income Tax Act, 1961, and determined total income of the assessee at `1,59,90,190/-, inter-alia, making additions / disallowances towards estimated fair rent from house property, professional income, excess depreciation claimed on building and expenditure claimed u/s.37 of the Act and added back income to total income of the assessee. The assessee carried the matter in appeal before the First Appellate Authority. The learned Commissioner of Income Tax (Appeals) has dismissed appeal filed by the assessee ex-parte for non-appearance, however, not discussed issues of additions/disallowances made by the Assessing Officer, on the basis of written submissions filed by the assessee or on merits. Aggrieved by order of the learned CIT(A), the assessee is in appeal before us. 4 ITA No 25/Chny/2020 4. The learned A.R for the assessee submitted that the learned CIT(A) has erred in dismissing appeal filed by the assessee without providing reasonable opportunity of hearing in violation of principles of natural justice. The AR submitted that no notice or communication towards re-posting of hearing on 15.10.2019 before learned CIT(A) was received by the assessee. The learned CIT(A) ought to have disposed of appeal filed by the assessee on merits, based on written submissions filed by the assessee. Therefore, in the interest of justice, one more opportunity of hearing may be given to go back to learned CIT(A) and file necessary evidences to justify his case. 5. The learned DR, on the other hand, strongly supporting order of the learned CIT(A) submitted that though the assessee had filed written submissions, when the case was reposted for want of clarification on several occasions, neither the assessee nor his representative appeared before learned CIT(A) and thus, there is no reason to give one more opportunity of hearing to the assessee. 5 ITA No 25/Chny/2020 6. We have heard both the parties, perused material available on record and gone through orders of the authorities below. We find that the learned CIT(A) has disposed off the appeal filed by the assessee ex-parte for non-prosecution as the assessee to justify its case. No doubt, it is the obligation of the person who files appeal, go before the authorities, when the appeal is called for hearing to justify its case. In case, the assessee did not choose to appear before the authorities, then the appellate authority left with no option but to dispose off the appeal on the basis of materials available on record, but said appeal needs to be disposed off on merits on the basis of materials available on record. In this case, on perusal of the order of the learned CIT(A), we find that the learned CIT(A) has disposed off the appeal for non- appearance without discussing issues involved in the appeal on merits and on the basis of written submissions filed by the assessee. Therefore, we are of the considered opinion that issue needs to go back to the file of the learned CIT(A) to give one more opportunity to the assessee to file necessary evidence in support of his case. Hence, we set aside impugned order and remit the matter back to file of the learned CIT(A) 6 ITA No 25/Chny/2020 and direct him to reconsider the issues after providing adequate opportunity of hearing to the assessee. Needless to say the assessee shall go before the CIT(A) without seeking any adjournment unless or otherwise warrants under extreme circumstances. 7. In the result, appeal filed by the assessee is treated as allowed for statistical purposes. Order pronounced in the open court on 30 th November, 2021 Sd/- Sd/- (महावीर संह) ( जी. मंज ु नाथ ) (Mahavir Singh) (G. Manjunatha ) उपा य / Vice-President लेखा सद%य / Accountant Member चे'नई/Chennai, (दनांक/Dated 30 th November, 2021 DS आदेश क त*ल+प अ,े+षत/Copy to: 1. Appellant 2. Respondent 3. आयकर आय ु -त (अपील)/CIT(A) 4. आयकर आय ु -त/CIT 5. +वभागीय त न1ध/DR 6. गाड फाईल/GF.