Ram Babarao Jogdand, Pune V. ITO, Wd.-3(4), Pune

ITA 403/PUN/2010

• Counselvise Citation: 40324514 RSA 2010
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K AMBASTHA
• Assessee Lawyers: SUNIL PATHAK; RAM JOGDAND
• Keywords: Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.403/PN/10 (ASSTT. YEAR 2005-06) SHRI RAM BABARAO JOGDAND, .. APPELLANT FLAT NO.24, WING A-2, NEW AJANTHA AVENUE, PAUD ROAD, KOTHRUD, PUNE - 411038 PAN AAPPJ7621K VS. INCOME-TAX OFFICER, WARD 3(4), PUNE .. RESPO NDENT APPELLANT BY : SHRI SUNIL PATHAK & RAM JOGDAND RESPONDENT BY : SHRI S.K.AMBASTHA DATE OF HEARING : 23.11.2011 DATE OF PRONOUNCEMENT : 29.11.2011 ORDER PER G S PANNU, AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R OF THE COMMISSIONER OF INCOME-TAX (APPEALS), PUNE DATED 08 /01/2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 28/12/2007 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOM E-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. IN THIS APPEAL, THE PRELIMINARY GROUND RAISED BY THE ASSESSEE IS THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS D ISMISSED THE 2 APPEAL OF THE ASSESSEE FOR NON-ATTENDANCE OF THE AS SESSEE WITHOUT ADJUDICATING THE MERITS OF THE GROUNDS OF APPEAL RA ISED BEFORE HIM. 3. IN THIS CONNECTION, PRELIMINARY FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO FILED A RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2005- 06 DECLARING TOTAL INCOME OF RS.4,24,312/- WHICH W AS SUBJECT TO SCRUTINY ASSESSMENT IN TERMS OF WHICH THE FINAL INC OME WAS DETERMINED AT RS.1,27,33,490/-, AFTER MAKING VARIOUS ADDITION S/ DISALLOWANCES. THE ADDITIONS/DISALLOWANCES MADE BY THE ASSESSING O FFICER WERE CARRIED IN APPEAL BEFORE THE COMMISSIONER OF INCOME -TAX (APPEALS). THE COMMISSIONER OF INCOME-TAX (APPEALS) OBSERVED T HAT THE ASSESSEE NEITHER ATTENDED THE PROCEEDINGS BEFORE HIM ON VARI OUS DATES OF HEARING AND NOR FILED ANY WRITTEN SUBMISSION AND TH EREFORE HE CONCLUDED THAT THE ASSESSEE WAS NOT INTERESTED IN P URSUING THE APPEAL. IN VIEW THEREOF THE APPEAL OF THE ASSESSEE CHALLENG ING THE DISALLOWANCES/ ADDITIONS MADE BY THE ASSESSING OFFI CER WAS DISMISSED . IN COMING TO SUCH CONCLUSION, THE COMMISSIONER OF INCOME-TAX (APPEALS) FOLLOWED THE RATION OF DECISION LAID DOWN IN THE CASE OF MULTIPLAN (INDIA) LTD., 38 ITD 320 (DEL.) AND IN T HE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. COMMISSIONER OF WEALTH T AX, 223 ITR 480(MP). 4. BEFORE US, THE PRELIMINARY GROUND OF THE ASSESSE E IS THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DISMI SSING THE APPEAL OF THE ASSESSEE ON THE GROUND OF NON APPEARANCE WHI LE NO ADJUDICATION ON MERITS HAVE BEEN MADE WITH RESPECT TO VARIOUS GR OUNDS RAISED BY THE ASSESSEE. IT WAS PLEADED THAT THE IMPUGNED OR DER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) BE SET ASIDE A ND IN SUPPORT RELIANCE WAS PLACED ON THE DECISION OF THE AHMEDABA D BENCH OF THE 3 TRIBUNAL IN THE CASE OF GUJRAT THEMIS BIOSYN LTD. VS. JT. CIT. 74 ITD 339(AHD.). 5. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE, APPEARING FOR THE REVENUE HAS NOT SERIOUSLY DISPUTED THE PRELIMINARY PRAYER OF THE ASSESSEE FOR SETTING ASIDE THE IMPUGN ED ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), BUT HAS POINT ED OUT THE ABSENCE OF THE ASSESSEE IN THE HEARINGS BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS). 6. WE HAVE CAREFULLY CONSIDERED THE PRELIMINARY OBJ ECTION PUT-FORTH BY THE ASSESSEE WITH REGARD TO THE MANNER IN WHICH THE APPEAL HAS BEEN DISMISSED BY THE COMMISSIONER OF INCOME-TAX (A PPEALS) ON ACCOUNT OF NON-APPEARANCE OF THE ASSESSEE BEFORE HI M. IN THIS CONTEXT, A PERTINENT REFERENCE CAN BE MADE TO THE PROVISIONS OF SECTION 250 OF THE ACT WHICH ENUMERATES THE PROCEDURE FOR DISPOSAL OF THE APPEALS BY THE COMMISSIONER OF INCOME-TAX (APPEALS). SUB-SECTI ON (6) OF SECTION 250 REQUIRES THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITI NG AND SHALL STATE THE POINTS FOR THE DETERMINATION, DECISION THEREON AND REASON FOR THE DECISION. IN OTHER WORDS, THE ORDER OF THE COMMIS SIONER OF INCOME-TAX (APPEALS) DISPOSING OF THE APPEALS IS REQUIRED TO S ET OUT THE POINTS/GROUNDS OF APPEAL RAISED BEFORE HIM AND HIS DECISION THEREON ON MERITS AND ALSO THE REASONING FOR HIS DECISION. Q UITE CLEARLY ALL THESE ASPECTS ARE CONSPICUOUS BY THEIR ABSENCE IN THE IMP UGNED ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). THE COMMISSIO NER OF INCOME- TAX (APPEALS) HAS NEITHER CONSIDERED THE GROUNDS OF APPEAL RAISED BEFORE HIM AND NOR GIVEN HIS ADJUDICATION ON THE ST ATED GROUNDS OF APPEAL. THEREFORE, THE IMPUGNED ORDER OF THE COMMI SSIONER OF INCOME-TAX (APPEALS) DISMISSING THE APPEAL OF THE A SSESSEE MERELY FOR 4 NON-APPEARANCE WITHOUT CONSIDERING THE GROUNDS OF T HE APPEAL ON THE MERITS, IS CONTRARY TO THE PROCEDURE PRESCRIBED U/S .250(6) OF THE ACT. IN THIS VIEW OF THE MATTER WE FIND AMPLE FORCE IN T HE PRELIMINARY OBJECTION OF THE ASSESSEE AND ACCORDINGLY THE IMPUG NED ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS UNSUSTAINAB LE IN LAW. 7. IN SO FAR AS THE RELIANCE PLACED BY THE COMMISSI ONER OF INCOME- TAX (APPEALS) ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA) LTD., (SUPRA) IS CONCERNE D, THE SAME IN OUR VIEW, IS INAPPLICABLE IN THE PRESENT SITUATION. FI RSTLY, AS ALSO EXPLAINED BY OUR CO-ORDINATE BENCH IN THE CASE OF GUJRAT THEM IS BIOSYN LTD. (SUPRA), THE DECISION IN THE CASE OF MULTIPLAN (IN DIA) LTD., (SUPRA) IS BASED ON SECTION 254 OF THE ACT WHICH CONFERS PLENA RY JURISDICTION ON THE TRIBUNAL IN THE MATTERS OF THE PASSING ORDERS U NDER SECTION 254(1) OF THE ACT AND THE RESTRICTIONS PLACED IN THE PROV ISION OF SECTION 250(6) OF THE ACT RELATING TO THE ORDERS OF THE C OMMISSIONER OF INCOME-TAX (APPEALS) DO NOT FIND A PLACE IN SECTION 254 OF THE ACT. SECONDLY, IN A CASE WHERE THE TRIBUNAL DISMISSES TH E APPEAL OF AN APPELLANT FOR NON-PROSECUTION, THE APPELLATE TRIBUN AL RULES, 1963 PROVIDE A REMEDY INASMUCH AS RULE 24 PRESCRIBES THA T WHERE THE APPEAL IS DISPOSED OFF EX PARTE FOR DEFAULT BY THE APPELLANT AND APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIB UNAL AND THERE WAS SUFFICIENT CAUSE FOR HIS NON APPEARANCE WHEN THE AP PEAL IS CALLED FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. SO HOWEVER, IF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS TO DISMISS THE APPEAL EX PA RTE IN THE ABSENCE OF THE ASSESSEE WITHOUT ADJUDICATING ON MERITS, THE RE IS NO PROVISION EMPOWERING THE COMMISSIONER OF INCOME-TAX (APPEALS) TO REMEDY THE SITUATION EVEN IN DESERVING CASES. THEREFORE, THE COMMISSIONER OF INCOME-TAX (APPEALS) CLEARLY ERRED IN DISMISSING TH E APPEAL OF THE 5 ASSESSEE FOR NON-ATTENDANCE WITHOUT CONSIDERING THE GROUNDS OF APPEAL ON MERITS. 8. FOR ALL THE ABOVE REASONS, WE ARE INCLINED TO UP HOLD THE PRELIMINARY PLEA OF THE ASSESSEE, AND WE HEREBY SET ASIDE THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME-TAX (A PPEALS) AND RESTORE THE MATTER BACK TO HIS FILE WITH DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY IN ACCORDANCE WITH THE LAW. 9. IN THE RESULT, FOR THE STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF NOVEMBER, 2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S. PANNU) JUDICIAL MEMBER ACC OUNTANT MEMBER PUNE: 29 TH NOVEMBER, 2011 ASHWINI COPY TO:- 1) ASSESSEE 2) THE ITO, WARD 3(4), PUNE 3) THE CIT (A) II, PUNE 4) THE CIT II, PUNE 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, ITAT , 6) GUARD FILE BY ORDER TRUE COPY SR. PS, I.T.A.T., PUNE 6