Sri Varalakshmi Oil Refineries Pvt. Ltd., Perambalur V. ACIT, CHENNAI

ITA 287/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61037 (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: 2003-2004
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JUNIOR
• Assessee Lawyers: T VASUDEVAN

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. NO. 287/MDS/2012 (ASSESSMENT YEAR : 2003-04) M/S SRI VARALAKSHMI OIL REFINERIES PVT. LTD., NO.1/25, CHENNAI KUMBAKONAM MAIN ROAD, PAPPAGUDI POST, UDAYARPALAYAM, PERAMBALUR DISTRICT, TAMIL NADU 612 903. PAN : AAACS7682K (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY RANGE VI(4), CHENNAI - 600 034. (RESPONDENT) APPELLANT BY : SHRI T. VASUDEVAN, 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 : THIS IS A CASE WHERE THE CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE IN LIMINE FOR NON-PROSECUTION. AS PER THE CIT(APPEALS), DESPITE THREE POSTINGS, ASSESSEE HAD NOT APPEARED A ND THOUGH ITS 2 I.T.A. NO. 287/MDS/12 REPRESENTATIVE ENTERED APPEARANCE ON THE LAST DATE GIVEN, THE EXPLANATIONS SOUGHT WERE NOT FURNISHED NOR THE PART ICULARS WERE GIVEN. 2. WE FIND FROM THE ORDER OF CIT(APPEALS) THAT THE CIT(APPEALS) HAD NOT CONSIDERED THE MERITS OF THE CASE, BUT HAD DISM ISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. NO DOUBT, THE AS SESSEE MIGHT HAVE BEEN GIVEN OPPORTUNITY TO ENTER APPEARANCE, BUT 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 LIMI TED V. ACIT IN I.T.A. NOS. 1821 & 1822/MDS/2011 HAD CONSIDERED A SIMILAR ISSUE. IN ITS ORDER DATED 18 TH JANUARY, 2012, THIS TRIBUNAL HELD AT PARA 4 AS UND ER:- 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 ASSESSEE. AS PER SUB -SECTION (6) OF SECTION 250 OF THE ACT, WHICH PRESCRIBES THE PROCEDURE TO BE FOLLOWED BY A CIT(APPEALS), AN ORDER OF CIT(APPEALS ) DISPOSING OF AN APPEAL SHALL BE IN WRITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION TAKEN THEREON AND REASO NS FOR THE DECISION. IN OTHER WORDS, THERE IS NO POWER VESTED ON CIT(APPEALS) TO DISMISS THE APPEAL OF AN ASSESSEE FOR NON-PROSEC UTION OR NON- APPEARANCE. HE HAS TO DEAL WITH THE CASE ON MERITS IN ACCORDANCE WITH LAW. IN ANY CASE, HERE, ASSESSEE HAD FILED AN APPLICATION FOR ADJOURNMENT ON 28 TH OCTOBER, 2011 AND NOTHING WAS MENTIONED BY CIT(APPEALS) ON SUCH ADJOURNMENT PETITION. WE ARE , THEREFORE, OF THE OPINION THAT THE MATTER HAS TO GO BACK TO CIT(A PPEALS) FOR CONSIDERATION AFRESH FOR BOTH THE YEARS. WE, THERE FORE, SET ASIDE THE ORDER OF CIT(APPEALS) FOR BOTH THE YEARS AND R EMIT IT BACK TO HIM FOR CONSIDERATION DE NOVO IN ACCORDANCE WITH LA W, AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE FOR PRESENTING ITS CASE. 3 I.T.A. NO. 287/MDS/12 3. WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY CO-OR DINATE BENCH OF THIS TRIBUNAL AND HOLD THAT THE CIT(APPEALS) WAS OB LIGED TO CONSIDER THE CASE ON MERITS AND COULD NOT DISMISS FOR WANT OF PR OSECUTION. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND REMIT THE APPEALS BACK TO HIM FOR CONSIDERATION DENOVO IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED 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: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-V, CHENNAI-34 (4) CIT, CHENNAI-III, CHENNAI (5) D.R. (6) GUARD FILE