Tamilnadu Alloy Foundry Co. Ltd., Hosur V. ACIT, CHENNAI

ITA 3054/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7961 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 31-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R DURAI
• Assessee Lawyers: T BANUSEKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI . . . , !' . #$#% , & '' ( [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] ./I.T.A.NO.3054/MDS/2016 / ASSESSMENT YEAR : 2011-2012. TAMILNADU ALLOY FOUNDRY CO. LTD, C/O. M/S. M.K. RAO & CO, A 41/12, TNHB BAGALUR ROAD, HOSUR 635 109. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(1) CHENNAI, [PAN AAACT 7981N ] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : SHRI. T. BANUSEKAR, C.A. /RESPONDENT BY : SHRI. R.DURAI PANDIAN, JCIT. /DATE OF HEARING : 08-2-2017 ! /DATE OF PRONOUNCEMENT : 14-2-2017 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER IN THIS APPEAL ASSESSEE ASSAILS AN ORDER DATED 21 .03.2016 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-11, CHENNA I FOR A REASON THAT THE APPEAL WAS DISPOSED OF BY THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) EX-PARTE. ITA NO.3054/MDS/2016 :- 2 -: 2. THE APPEAL HAS BEEN FILED BY THE ASSESSEE WITH A D ELAY OF 150 DAYS. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT ASSESSEE WAS A SICK COMPANY AND CLOSED SINCE 1983. AS PER LD. A UTHORISED REPRESENTATIVE THERE WERE NO WORKERS OR ADMINISTRAT IVE STAFF TO MONITOR THE COMMUNICATION AT THE REGISTERED OFFICE. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT TWO OF ITS DIRECTORS HAD SHIFTED THEIR BASE TO KERALA AND OTHER TWO DIRECTORS WERE CONSTAN TLY TRAVELLING. CONTENTION OF THE LD. AUTHORISED REPRESENTATIVE WAS THAT ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS SERVED ON ONE SHRI. KRISHNA RAO, ERSTWHILE OF THE DIRECTOR COMPANY. AS PER LD. AUTHORISED REPRESENTATIVE SAID SHRI. KRISHNA RAO WAS NOT AVAIL ABLE IN TAMIL NADU AND HENCE ASSESSEE BECAME AWARE OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ONLY BY FIRST WEEK OF OCTOBER, 2016. AS PER LD. AUTHORISED REPRESENTATIVE APPEAL W AS FILED WITHOUT ANY FURTHER DELAY. 3. LD. DEPARTMENTAL REPRESENTATIVE DID NOT RAISE AN Y SERIOUS OBJECTION ON THE CONDONATION SOUGHT BY THE ASSESSEE . ACCORDINGLY, CONSIDERING THE FACTS BROUGHT OUT BY THE LD. AUTHOR ISED REPRESENTATIVE AND ALSO SINCE LD. DEPARTMENTAL REPRESENTATIVE HAD NOT OBJECTED TO THE CONDONATION PETITION, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 4. MAIN GROUNDS RAISED BY THE ASSESSEE IS THAT LD. COM MISSIONER OF INCOME TAX (APPEALS) HAD DISPOSED OF ITS APPEAL EX-PARTE. LD. ITA NO.3054/MDS/2016 :- 3 -: AUTHORISED REPRESENTATIVE SUBMITTED THAT ASSESSEE H AD BY ITS LETTER DATED 15 TH MARCH, 2016 ADDRESSED TO LD. COMMISSIONER OF INCOM E TAX (APPEALS) INTIMATED ITS INTENTION FOR FILING A DECL ARATION UNDER DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016. AS PER LD. AUT HORISED REPRESENTATIVE BY VIRTUE OF CIRCULAR NO.33 OF 2016, DATED 12 TH SEPTEMBER, 2016 OF CENTRAL BOARD OF DIRECT TAXES, O NCE THE ASSESSEE HAD FILED A DECLARATION OR HAD INTIMATED COMMISSION ER OF INCOME TAX (APPEALS) ITS INTENTION TO MAKE A DECLARATION UNDER DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS BOUND TO KEEP THE APPEAL PENDING. 5. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE SUPPOR TED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD DECIDED THE APPEAL ON MERI TS. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT DISPUTED THAT ASSESSEE HAD FILED A LETTER BEFORE LD. COMMISSIONER OF INCOME TA X (APPEALS)-11, DATED 15 TH MARCH, 2016 WHICH READS AS UNDER:- 15 TH MARCH, 2016 THE COMMISSIONER OF INCOME TAX (APPEALS)-11, CHENNAI. ITA NO.3054/MDS/2016 :- 4 -: SIR, RE: TAMIL NADU ALLOY FOUNDRY CO. LTD. ITA NO.: 207/2014 - 15 ASSESSMENT YEAR: 2011 - 12 IN CONNECTION WITH THE ABOVE CASE, THE UNDERSIGNED IS INSTRUCTED THAT THE APPELLANT IS CONTEMPLATING F ILING A DECLARATION UNDER THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016 ANNOUNCED IN THE FINANCE BILL 2016. ACCORDINGLY IT IS MOST HUMBLY REQUESTED THAT THIS RESPECTED AUTHORITY MAY BE PLEASED TO NOT TAKE UP THE HEARING OF THE ABOVE APPEAL IN THE INTERREGNUM AND ADJOURN THE CASE. YOURS SINCERELY, T. BANUSEKAR AUTHORISED REPRESENTATIVE. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD PASSED HIS ORDER DATED 21.03.2016 AFTER RECEIPT OF THE ABOVE LETTER. IN ITS CIRCULAR NO.33 OF 2016, CBDT HAD CLARIFIED AS UNDER:- QUESTION NO. 2 : IN A CASE WHERE THE APPELLANT HA S FILED A DECLARATION UNDER THE SCHEME OR HAS INTIMATED THE CIT(APPEALS) HIS INTENTION TO FILE DECLARATION UN DER THE SCHEME, WHETHER THE CIT(APPEALS) WILL DISPOSE-OFF THE APPEAL? ANSWER: THE CIT(APPEALS) HAVE BEEN INSTRUCTED VIDE LETTER F.NO.279 /MISC./ M-30/2016 DATED 30.3.2016 THAT APPEALS WHERE THE APPELLANTS HAVE EXPRESSED THEIR INTENTION TO AVAIL THE SCHEME SHOULD BE KEPT PENDING. FURTHER, VIDE LETTER F.NO.279/MISC./M- 74/2016-ITJ DATED 19.07.2016, THE DESIGNATED AUTHORITY HAVE BEEN INSTRUCTED TO OBTAIN AN ENDORSEMENT FROM CIT(APPEALS) CONCERNED THAT THE APPEAL FOR WHICH DECLARATION HAS BEEN FILED WAS PENDING ON 29.02.2016 AND HAS NOT YET BEEN DISPOSED. THEREFORE, IN A CASE WHERE THE DECLARATION HAS BEEN MADE UNDER THE SCHEME OR AN INTENTION TO AVAIL THE SCHEME HAS BEEN MADE BY THE APPELLANT, THE COMMISSIONER OF INCOME TAX ITA NO.3054/MDS/2016 :- 5 -: (APPEALS) SHALL NOT DISPOSE THE PENDING THE APPEAL . IT IS CLEAR FROM THE ABOVE THAT ONCE INTENTION TO A VAIL THE SCHEME WAS MADE KNOWN BY THE ASSESSEE, LD. COMMISSIONER OF INC OME TAX (APPEALS) HAD TO KEEP THE APPEAL PENDING. BE THAT A S IT MAY, WE FIND THAT THE APPEAL WAS DISPOSED OF BY LD. COMMISSIONE R OF INCOME TAX (APPEALS)EX-PARTE, THOUGH ON MERITS. CONSIDERING THE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT ASSESSEE CAN BE GIVEN ONE MORE OPPORTUNITY FOR MAKING A PROPER REPRESENTATION BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS). WE THEREFORE SET ASIDE THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) A ND REMIT THE APPEAL BACK TO HIM FOR CONSIDERATION AFRESH IN ACC ORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON TUESDAY, THE 14TH DAY OF FEBR UARY, 2017, AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( !' . #$#% ) (ABRAHAM P. GEORGE) & / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED:14TH FEBRUARY, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,' / CIT(A) 5. )-. / / DR 2. / RESPONDENT 4. + / CIT 6. .01 / GF