C.E.S.Onys Private Limited, CHENNAI V. ACIT, CHENNAI

ITA 282/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61042 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JUNIOR
• Assessee Lawyers: A S SRIRAMAN
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER I.T.A. NOS. 282, 283, 284 & 285/MDS/2012 (ASSESSMENT YEARS : 2004-05 TO 2007-08) M/S C.E.S. ONYX PVT. LTD., SHREYAS CHAMIYERS TOWERS, III FLOOR, 37/9, CHAMIERS RD., TEYNAMPET, CHENNAI - 600 018. PAN : AABCC1396D (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE I(3), CHENNAI - 600 034 . (RESPONDENT) APPELLANT BY : SHRI A.S. SRIRAMAN, ADVOCATE RESPONDENT BY : SHRI K.E.B. RENGARAJAN , JUNIOR STANDING COUNSEL DATE OF HEARING : 03.05.2012 DATE OF PRONOUNCEMENT : 03.05.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THESE APPEALS FILED BY THE ASSESSEE, ITS GRIEV ANCE IS THAT THE CIT(APPEALS) HAD DISMISSED THE APPEALS WITHOUT CONS IDERING THE MERITS FOR A REASON THAT ASSESSEE WAS INDIFFERENT I N ITS APPROACH AND HAD NOT APPEARED BEFORE HIM. I.T.A. NOS. 282 TO 285/MDS/12 2 2. ASSESSEE, A COMPANY ENGAGED IN THE BUSINESS OF C ONSERVANCY OPERATIONS, HAD FILED ITS RETURNS FOR THE IMPUGNED ASSESSMENT YEARS CLAIMING DEDUCTION UNDER SECTION 80-IA OF INCOME-TA X ACT, 1961 (IN SHORT 'THE ACT'). SUCH A CLAIM WAS ORIGINALLY ALLO WED, BUT, CONSEQUENT TO ORDER PASSED UNDER SECTION 263 OF THE ACT, THE A SSESSMENT WAS REDONE AND THE CLAIM OF SUCH DEDUCTION WAS DISALLOW ED. THEREAFTER, ASSESSEE MOVED IN APPEAL BEFORE THE CIT(APPEALS). CIT(APPEALS), FOR A REASON THAT ASSESSEE HAD NOT APPEARED FOR HEA RINGS FIXED ON VARIOUS DATES, DISMISSED THE APPEALS QUOTING THE PR INCIPLE VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT. H E RELIED ON THE DECISION OF DELHI BENCH OF THIS TRIBUNAL IN THE CAS E OF CIT V. MULTIPLAN (INDIA) PVT. LTD. (38 ITD 320). 3. NOW BEFORE US, A.R. SUBMITTED THAT CIT(APPEALS) WAS DUTY BOUND TO DECIDE THE CASE ON MERITS AND COULD NOT DI SMISS EX-PARTE. HE ALSO POINTED OUT THAT NOTICES FOR THE HEARINGS W ERE NOT SENT TO THE ADDRESS MENTIONED IN FORM NO.35 FILED BEFORE THE CI T(APPEALS). 4. D.R. FAIRLY ADMITTED THAT NOTICES FOR HEARINGS W ERE SENT TO THE ADDRESS OF THE COMPANY, WHEREAS, ASSESSEE HAD GIVEN ADDRESS OF ITS CHARTERED ACCOUNTANT IN FORM NO.35. I.T.A. NOS. 282 TO 285/MDS/12 3 5. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THE QUESTION BEFORE US IS WHETHER CIT(APPEALS) CAN DECIDE THE CASE WITHOUT GOING INTO THE MERITS, FOR A REASON THAT AS SESSEE HAD NOT ENTERED APPEARANCE. NO DOUBT, THE ASSESSEE MIGHT H AVE BEEN GIVEN OPPORTUNITY TO ENTER APPEARANCE, BUT IT HAD FAILED TO DO SO. NEVERTHELESS, WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S QUESTNET ENTERPRISES INDIA PRIVATE LIMITED V. ACIT IN I.T.A. NOS. 1821 & 1822/MDS/2011 HAD CONSIDERED A S IMILAR ISSUE. IN ITS ORDER DATED 18 TH JANUARY, 2012, THIS TRIBUNAL HELD AT PARA 4 AS UNDER:- 4. WE HAVE HEARD THE CONTENTIONS. APPEAL BEFORE CIT(APPEALS) UNDER SECTION 246A OF INCOME-TAX ACT , 1961 (IN SHORT 'THE ACT') IS A STATUTORY RIGHT GIVEN TO AN A SSESSEE. AS PER SUB-SECTION (6) OF SECTION 250 OF THE ACT, WHICH PR ESCRIBES THE PROCEDURE TO BE FOLLOWED BY A CIT(APPEALS), AN ORDE R OF CIT(APPEALS) DISPOSING OF AN APPEAL SHALL BE IN WR ITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION TA KEN THEREON AND REASONS FOR THE DECISION. IN OTHER WORDS, THER E IS NO POWER VESTED ON CIT(APPEALS) TO DISMISS THE APPEAL OF AN ASSESSEE FOR NON-PROSECUTION OR NON-APPEARANCE. HE HAS TO DEAL WITH THE CASE ON MERITS IN ACCORDANCE WITH LAW. IN ANY CASE, HER E, ASSESSEE HAD FILED AN APPLICATION FOR ADJOURNMENT ON 28 TH OCTOBER, 2011 AND NOTHING WAS MENTIONED BY CIT(APPEALS) ON SUCH ADJO URNMENT PETITION. WE ARE, THEREFORE, OF THE OPINION THAT T HE MATTER HAS TO GO BACK TO CIT(APPEALS) FOR CONSIDERATION AFRES H FOR BOTH THE YEARS. WE, THEREFORE, SET ASIDE THE ORDER OF C IT(APPEALS) FOR BOTH THE YEARS AND REMIT IT BACK TO HIM FOR CON SIDERATION DE NOVO IN ACCORDANCE WITH LAW, AFTER GIVING DUE OPPOR TUNITY TO THE ASSESSEE FOR PRESENTING ITS CASE. I.T.A. NOS. 282 TO 285/MDS/12 4 6. WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY CO-OR DINATE BENCH OF THIS TRIBUNAL AND HOLD THAT THE CIT(APPEALS) WAS OBLIGED TO CONSIDER THE CASE ON MERITS AND COULD NOT DISMISS F OR WANT OF PROSECUTION. FURTHER, IN ASSESSEES CASE, THE NOTI CES FOR HEARING WERE NEVER SENT TO THE ADDRESS PROVIDED BY IT IN FO RM NO.35. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND REMIT THE APPEALS BACK TO HIM FOR CONSIDERATION DENOVO IN ACC ORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 3 RD MAY, 2012. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 3 RD MAY, 2012. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-III, CHENNAI/ CIT, CHENNAI-I, CHENNAI/D.R./GUARD FILE