M.Gouthamchand, CHENNAI V. ITO, CHENNAI

ITA 2905/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8094 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1991-1992
• Appeal Filed On: 10-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH (SMC) : CHENNAI . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER ./I.T.A. NO. 2905/MDS/2016 / ASSESSMENT YEAR : 1991-1992. SHRI. M. GOUTHAMCHAND L/R OF LATE MISRILAL JAIN, NO.82/86, GOWDIA MUTT ROAD, ROYAPETTAH, CHENNAI 600 014. VS. THE INCOME TAX OFFICER, CORPORATE WARD 11(2) CHENNAI. [PAN AAGPG 0970K] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI. G. BASKAR, ADVOCATE /RESPONDENT BY : SHRI. ASHISH TRIPATHI, IRS, JCIT. ! '# /DATE OF HEARING : 11-01-2017 $% '# /DATE OF PRONOUNCEMENT : 25-01-2017 / O R D E R IN THIS APPEAL FILED BY THE ASSESSEE, ITS GRIEVANC E IS THAT THE ADDITIONS MADE BY THE LD. ASSESSING OFFICER AND CO NFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WERE BASED ON PRESUMPTIONS AND ON A DEAD PERSON. 2. SUBMISSIONS OF THE ASSESSEE BEFORE US CAN BE SUMMA RIZED AS UNDER:- THE ASSESSEE PASSED AWAY ON 19.11.1991. THEREAFTER , PROCEEDINGS WERE INITIATED FOR RE-ASSESMENT AND ORD ER PASSED ON 31.1.2003 ON ONLY ONE OF THE LEGAL HEIR S MT. BIDAM BAI (WIFE) ITA NO.2905/MDS/2016. :- 2 -: IN THE APPEAL FILED BY HER AN ADDITIONAL GROUND WAS RAISED THAT NOTICE U/S.148 HAVING NOT BEEN SERVED ON ALL THE LEGAL HEIRS, THE RE-ASSESSMENT IS NULLITY. THE ASSESSING OFFICER SUBMITTED HIS REPORT DATED 31.10.2000 ON THE SAID ADDITIONAL GROUND. THE AO SUBMITTED REMAND REPORTS DATED 14.12.2004, 14.09.2005 AND 20.11.2016 IN RESPONSE TO THE WRITTE N SUBMISSIONS FILED BY THE ASSESSEE IN THE MEANWHILE, ONE OTHER LEGAL HEIR AND SON MISR IMAL JAIN FILED AN APPEAL BEFORE THE CIT (APPEALS) WHICH WAS DISMISSED BY HIM AS INFRUCTUOUS VIDE HIS ORDER DATED 11.01.2005 IN ITA NO.261/2002-03. WHILE THE APPEAL WAS PENDING THE APPELLANT SMT. BIDAM BAI PASSED AWAY ON 23.11.2009. THE ASSESSEE'S REPRESENTATIVE SRI.RAMESH KUMAR, ADVOCATE SHIFTED HIS OFFICE FROM GOVINDAPPA NAICKEN STREET T O VEPERY. THE NOTICES OF HEARING SAID TO HAVE BEEN ISSUED BY THE COMMISSIONE R OF INCOME TAX (APPEALS) COULD NOT BE RESPONDED TO IN T HIS SITUATION. THE STATEMENT OF THE CIT (APPEALS) THAT NO WRITTEN SUBMISSIONS WERE MADE BEFORE HIM IS CONTRARY TO FACTS. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) IS LIABLE TO BE QUASHED. 3. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT THE MATTER CAN BE SENT BACK TO THE LD. COMMISS IONER OF INCOME TAX (APPEALS) FOR CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE AND GIVING AN OPPORTUNITY TO REPRESENT ITS CASE. 4. I FIND FROM THE ORDER OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) THAT LD. COMMISSIONER OF INCOME TAX (APP EALS) AFTER REPRODUCING THE GROUNDS TAKEN BY THE ASSESSEE HAD D ISMISSED THE APPEAL WITHOUT GOING INTO ITS MERITS. LD. CIT(A) WA S OF THE OPINION THAT ITA NO.2905/MDS/2016. :- 3 -: ASSESSEE HAD NOT ENTERED IN APPEARANCE AND WAS NOT SERIOUS IN PRESUMING THE MATTER. IN THIS RESPECT, SEC. 250(6) OF THE INCOME TAX ACT, 1961 IS REPRODUCED HEREUNDER:- ( 6) THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHA LL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. IT IS CLEAR FROM THE ABOVE SUB-SECTION THAT LD. COM MISSIONER OF INCOME TAX (APPEALS) CAN DECIDE AN APPEAL ONLY BASED ON THE MERITS OF THE CASE AND CANNOT DISMISS AN APPEAL FOR NON PROSECUTI ON. I THEREFORE, SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS) AND REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING O FFICER FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 25TH JANUARY, 20 17, AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) $ %& / ACCOUNTANT MEMBER &'! / CHENNAI ( / DATED: 25TH JANUARY, 2017. KV ) '+, -,' / COPY TO: 1. / APPELLANT 3. .' () / CIT(A) 5. ,12 '3 / DR 2. / RESPONDENT 4. .' / CIT 6. 24 5! / GF