SMT. NAYNA NITIN SHAH, MADURAI V. ITO, WARD - II (1), MADURAI

ITA 2808/CHNY/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9157 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ (एस एम सी) ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ (SMC) BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ के समᭃ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT आयकर अपील सं./ITA No.: 2808/CHNY/2019 िनधाᭅरण वषᭅ /Assessment Year: 2008-09 Smt. Nayna Nitin Shah, Classic Sarees, No.20, Amman Sannathi, Madurai – 625 001. PAN : AAVPN 2753Q v. The ITO, Ward-II(1) Madurai. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri S. Sridhar, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri B. Sajive, JCIT स ु नवाई कȧ तारȣख/Date of Hearing : 08.11.2021 घोषणा कȧ तारȣख/Date of Pronouncement : 08.11.2021 आदेश /O R D E R 1. This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-2, Madurai, in ITA No.0177/2014-15, order dated 02.08.2019. The Assessment was framed by Income Tax Officer, Ward - II(1), Madurai for the assessment year 2008-09 vide order dated 27.03.2014 U/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter ‘the Act’). 2 I.T.A. No.2808/Chny/2019 2. At the outset, the ld.counsel for the assessee took my attention to the second ground which is in regard to the order of CIT(A), passed in violation of principles of natural justice. The ld.counsel for the assessee took me through the order of CIT(A) and read out relevant para 5, wherein the CIT(A) passed ex-parte order by observing as under: “5. It has been argued in the written submission that the land sold was located at silver cascade waterfalls which is 11.9 kilometer from Kodaikanal. The appellant has not furnished any documentary evidence to support that the conditions contained u/s.2(14)(iii) are fulfilled, so as to support its claim of exemption u/s 10(37)(ii) of the Income Tax Act. Moreover, the appellant has not disclosed any agricultural income in the Income Tax return. The appellant has not submitted any documentary evidence to controvert the findings made by the Assessing Officer. In my considered view, there is no need to interfere with the assessment order. Accordingly, all the grounds taken by the appellant are dismissed.” The ld.counsel pointed out that the CIT(A) admits that the land of the assessee is 11.9 kilometers from Kodaikanal, but according to him the assessee has not furnished the documentary evidences to support the claim as per Section 2(14)(iii) of the Act. The CIT(A) also noted that the assessee has not disclosed any agricultural income. The ld.counsel stated that he has each and every evidence but the CIT(A) has dismissed the appeal of the assessee ex-parte. When these facts were confronted to ld.senior Department Representative, he could not controvert the above stated facts. 3 I.T.A. No.2808/Chny/2019 3. After hearing the rival contentions, I’m of the view that unless the statute authorizes a quasi judicial authority to dismiss the appeal for default expressly or by inevitable implication, the appellate authority has to decide the appeal and not to dismiss it for default. Probably, appellate authority has to decide the appeal on merits by a speaking order. Where an appeal has been disposed off ex-parte and without speaking order, ex-parte order is not maintainable. Hence, the order passed by the CIT(A) is not maintainable and accordingly the same is reversed. However, the order of CIT(A) is set aside but matter is remanded back to his file for fresh adjudication after allowing reasonable opportunity of being heard to the assessee. 4. In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 8 th November, 2021 at Chennai. Sd/- (महावीर ͧसंह ) (Mahavir Singh) उपाÚय¢ /Vice President चे᳖ई/Chennai, ᳰदनांक/Dated, the 8 th November, 2021 RSR 4 I.T.A. No.2808/Chny/2019 आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.