SHRI SHANMUGAM SENTHILKUMAR, CHENNAI V. ITO, NCW - 8 (4), CHENNAI

ITA 2578/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8038 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 06-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S. BHARATH
• Keywords: Set aside
• Section: 251

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , . !, # !$ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.2578/CHNY/2019 & '& / ASSESSMENT YEAR : 2015-16 SHRI SHANMUGAM SENTHILKUMAR, NO.140, KUNDRATHUR HIGH ROAD, PORUR, CHENNAI - 600 116. PAN : ALGPS 6106 E V. THE INCOME TAX OFFICER, NON CORPORATE WARD 8(4), CHENNAI - 600 034. ()*/ APPELLANT) (+,)*/ RESPONDENT) )* - . / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE +,)* - . / RESPONDENT BY : SHRI S. BHARATH, CIT / - 0# / DATE OF HEARING : 26.11.2019 12' - 0# / DATE OF PRONOUNCEMENT : 16.01.2020 / 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) 9, CHENN AI, DATED 02.08.2019 AND PERTAINS TO ASSESSMENT YEAR 2015-16. 2. SHRI S. SRIDHAR, THE LD. COUNSEL FOR THE ASSESSE E, DRAWN OUR ATTENTION TO THE IMPUGNED ORDER OF THE CIT(APPEALS) AND SUBMITTED 2 I.T.A. NO.2578/CHNY/19 THAT THE CIT(APPEALS) HAS SIMPLY REPRODUCED THE ASS ESSMENT ORDER AND NOTICE OF HEARING AND THEN DISMISSED THE APPEAL . ACCORDING TO THE LD. COUNSEL, IN FACT, SHRI JAMBULINGAM, WHO APP EARED BEFORE THE CIT(APPEALS), IS A STAFF FROM HIS OFFICE AND NO T A CHARTERED ACCOUNTANT. ACCORDING TO THE LD. COUNSEL, THE CIT( APPEALS) MISTOOK THE OFFICE STAFF FROM THE LD. COUNSELS OFF ICE TO A CHARTERED ACCOUNTANT AND PROCEEDED TO DISPOSE OF THE APPEAL W ITHOUT APPRECIATING THE MATERIAL AVAILABLE ON RECORD. IT IS ALSO BROUGHT TO THE NOTICE OF THE BENCH THAT THE CIT(APPEALS) IN TH E GUISE OF HEARING, WAS MAKING THE PRACTITIONERS LIKE TAX PRAC TITIONERS, ADVOCATE AND CHARTERED ACCOUNTANT TO WAIT TILL 9 PM AND 10 PM IN HIS OFFICE AND PASSING THIS KIND OF ORDER WITHOUT A CTUALLY APPLYING HIS MIND. THE LD. COUNSEL FURTHER SUBMITTED THAT INSTE AD OF RE- APPRECIATING THE MATERIAL AVAILABLE ON RECORD AND P ASSING A SPEAKING ORDER, THE CIT(APPEALS) HAS SUMMARIZED THE FINDING OF THE ASSESSING OFFICER IN A NUTSHELL AND DISMISSED THE A PPEAL. THEREFORE, THE LD. COUNSEL SUBMITTED THAT THE MATTE R MAY BE REMITTED BACK TO THE FILE OF THE CIT(APPEALS) FOR R ECONSIDERATION ON MERIT. 3. SHRI S. BHARATH, THE LD. DEPARTMENTAL REPRESENTA TIVE, SUBMITTED THAT HE DID NOT WANT TO COMMENT ON THE FU NCTIONING OF THE 3 I.T.A. NO.2578/CHNY/19 CIT(APPEALS). HE ALSO SUBMITTED THAT THE CIT(APPEA LS) HAS REPRODUCED THE ASSESSMENT ORDER AND THE NOTICE OF H EARING IN THE IMPUGNED ORDER OF THE CIT(APPEALS) WHICH COULD HAVE BEEN AVOIDED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. CO UNSEL FOR THE ASSESSEE AND THE LD. D.R. AND PERUSED THE IMPU GNED ORDER OF THE CIT(APPEALS) AND OTHER MATERIAL AVAILABLE ON RE CORD. AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AND T HE LD. D.R., THE CIT(APPEALS) HAS SIMPLY REPRODUCED THE ASSESSMENT O RDER, NOTICE OF HEARING, ETC. AND SUMMARIZED THE FINDING OF THE ASSESSMENT ORDER AND DISMISSED THE APPEAL. THE POWER CONFERRED ON T HE CIT(APPEALS) UNDER SECTION 251 OF THE INCOME-TAX AC T, 1961 (IN SHORT 'THE ACT') IS ONEROUS. THE CIT(APPEALS) HAS TO APPLY HIS MIND INDEPENDENTLY AND RE-APPRECIATE THE MATERIAL AVAILA BLE ON RECORD IN ACCORDANCE WITH LAW AND PASS A SPEAKING ORDER. THE CIT(APPEALS) IS EXPECTED TO GIVE HIS OWN REASON FOR THE CONCLUSI ON REACHED IN HIS ORDER. THE APPLICATION OF MIND SHALL BE REFLECTED IN THE IMPUGNED ORDER OF THE CIT(APPEALS). IN THIS CASE, BY REPROD UCING THE NOTICE OF HEARING, THE CIT(APPEALS) MIGHT HAVE INTENDED TO BR ING ON RECORD THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL ANY MORE, THEREFORE, HE HAD NOT APPEARED BEFORE HIM EVE N AFTER THE 4 I.T.A. NO.2578/CHNY/19 RECEIPT OF THE NOTICE. THIS TRIBUNAL IS OF THE CON SIDERED OPINION THAT EVEN IN CASE THE ASSESSEE HAS NOT APPEARED BEFORE T HE CIT(APPEALS) AFTER DUE SERVICE OF NOTICE OF HEARING , UNDER SECTION 251 OF THE ACT, THE CIT(APPEALS) IS EMPOWERED TO RE APPRECIATE THE MATERIAL AVAILABLE ON RECORD AND ENHANCE THE ASSESS MENT IF NECESSARY BY A SPEAKING ORDER. 5. THE POWER CONFERRED ON THE CIT(APPEALS) TO ENHAN CE THE ASSESSMENT IS ONEROUS RESPONSIBILITY. SUCH A RESPO NSIBILITY CANNOT BE IGNORED BY THE CIT(APPEALS) BY SIMPLY BLAMING TH E ASSESSEE THAT HE HAS NOT RESPONDED TO THE NOTICE OF HEARING. MOREOVER, THE JUDICIAL DISCIPLINE REQUIRES THAT THE CIT(APPEALS) SHALL PASS AN ORDER BY BRINGING ON RECORD ALL MATERIAL FACTS AND RECORD HIS OWN REASON FOR THE CONCLUSION REACHED THEREIN. THERE SHOULD B E A LIVE LINK TO THE MATERIAL AVAILABLE ON RECORD AND THE APPLICATIO N OF MIND BY THE CIT(APPEALS) WHILE DISPOSING OF THE APPEAL. SUCH A LIVE LINK CAN BE BROUGHT IN ONLY BY PASSING A SPEAKING ORDER. THERE FORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT( APPEALS) HAS TO APPLY HIS MIND INDEPENDENTLY TO THE MATERIAL AVAILA BLE ON RECORD AND REAPPRECIATE THE SAME AND THEREAFTER DECIDE THE ISS UE AFRESH IN ACCORDANCE WITH LAW. 5 I.T.A. NO.2578/CHNY/19 6. MOREOVER, IT IS BROUGHT TO THE NOTICE OF THE TRI BUNAL THAT THE PRESENT INCUMBENT OF THE CIT(APPEALS) WAS MAKING TO WAIT THE TAX PRACTITIONERS, ADVOCATES AND CHARTERED ACCOUNTANT T ILL 9 PM OR 10 PM EVERY DAY. THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE CIT(APPEALS) BEING A GOVERNMENT EMPLOYEE, IS EXPECT ED TO WORK FOR THE ENTIRE 24 HOURS IN A DAY. IT DOES NOT MEAN THAT THE CIT(APPEALS) HAS TO WORK FOR ENTIRE 24 HOURS. THE CIT(APPEALS) HAS TO WORK WITHIN THE OFFICE HOURS AS PRESCRIBED A ND TAKE SUFFICIENT REST SO THAT HE MAY RECOUP HIS ENERGY TO DO HIS JOB IN THE NEXT DAY MORNING. EVEN THOUGH WE ARE NOT BLAMING HIS WORKIN G UPTO 10 PM IN THE NIGHT, THERE MAY NOT BE ANY PRODUCTIVE RESUL T AFTER SUCH PROLONGED WORK AFTER THE OFFICE HOURS. WORKING IN THE LATE HOURS UPTO 10 PM IN THE NIGHT AND PASSING THIS KIND OF CR YPTIC AND NON- SPEAKING ORDER WILL NOT ONLY AFFECT THE HEALTH OF T HE OFFICER BUT ALSO PREJUDICE THE INTEREST OF THE ASSESSEE. THIS COULD HAVE BEEN AVOIDED BY THE CIT(APPEALS). MOREOVER, EVEN THOUGH SATURDAYS AND SUNDAYS ARE BEING DECLARED HOLIDAYS FOR CENTRAL GOVERNMENT OFFICES, INCLUDING THE OFFICE OF THE CIT(APPEALS), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SUCH HOLIDAYS ARE DECLA RED BY THE GOVERNMENT OF INDIA EXPECTING THE GOVERNMENT EMPLOY EES TO RELAX, REST AND RECOUP ENERGY ON SATURDAY AND SUNDAY SO TH AT THEY CAN 6 I.T.A. NO.2578/CHNY/19 WORK EFFECTIVELY AND EFFICIENTLY ON THE COMING WORK ING DAYS. THEREFORE, THIS TRIBUNAL IS CONFIDENT THAT THE CIT( APPEALS) MAY CONFINE HIS HEARING OF APPEALS WITHIN THE WORKING H OURS OF THE INCOME-TAX DEPARTMENT SO THAT THE CHARTERED ACCOUNT ANTS, ADVOCATES AND TAX PRACTITIONERS, WHO ARE APPEARING BEFORE HIM, MAY HAVE MORE CONFIDENCE AND CERTAINTY IN HIS FUNCT IONING. IT MAY NOT BE WRONG TO CONTINUE THE HEARING AFTER OFFICE H OURS OCCASIONALLY. BUT HEARING THE APPEALS AND MAKING THE TAX PRACTITI ONERS, ADVOCATES AND CHARTERED ACCOUNTANTS TO WAIT TILL 9 PM TO 10 P M ON DAILY BASIS HAS TO BE AVOID. 7. WITH THE ABOVE OBSERVATION, THE ORDER OF THE CIT (APPEALS) IS SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESS EE IS REMITTED BACK TO THE CIT(APPEALS). THE CIT(APPEALS) SHALL R E-EXAMINE THE MATTER IN THE LIGHT OF THE MATERIAL AVAILABLE ON RE CORD AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW, AFTER GIVIN G A REASONABLE OPPORTUNITY TO THE ASSESSEE. 8. IT IS MADE CLEAR THAT IF THE ASSESSEE HAS NOT AP PEARED BEFORE THE CIT(APPEALS) AFTER DUE SERVICE OF NOTICE OF HEA RING, IT IS OPEN TO THE CIT(APPEALS) TO CALL FOR RECORDS FROM THE ASSES SING OFFICER AND 7 I.T.A. NO.2578/CHNY/19 RE-APPRECIATE THE MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 9. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 16 TH JANUARY, 2020 AT CHENNAI. SD/- SD/- (. ! ) ( ... ) (S. JAYARAMAN) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 16 TH JANUARY, 2020. KRI. - +056 76'0 /COPY TO: 1. )* /APPELLANT 2. +,)* /RESPONDENT 3. / 80 () /CIT(A)-9, CHENNAI-34 4. PRINCIPAL CIT-4, CHENNAI 5. 69 +0 /DR 6. :& ; /GF.