C.K.Logadoss, CHENNAI V. ITO, CHENNAI

ITA 675/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8790 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAM
• Assessee Lawyers: RANGA RAMANUJAM
• Keywords: Right to appeal
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.675/MDS/2015 ( / ASSESSMENT YEAR: 2005-06) MR. C.K. LOGADOSS, ROYAL SQUARE, A FLAT, OLD NO.70/2, NEW NO.18/2, LANDONS ROAD, CHENNAI - 600 0 10. VS THE INCOME TAX OFFICER, BUSINESS WARD-VIII(3), CHENNAI-34. PAN: AABPL4456A ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. RANGA RAMANUJAM, C.A. /RESPONDENT BY : MR. GURU BHASHYAM, JCIT /DATE OF HEARING : 12 TH MAY, 2016 /DATE OF PRONOUNCEMENT : 15 TH JULY, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- 12, CHENNAI DATED 27.11.2014 IN ITA NO.2009/2013-14 PASSED UNDER SECTION 143(3) R.W.S. 147 & 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED THE SEVERAL GROUNDS, HOW EVER THE CRUX OF THE ISSUE IS AS FOLLOWS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE BECAUSE THE MATTER WAS ALREADY DECIDED BY THE LEARN ED COMMISSIONER OF INCOME TAX UNDER SECTION 264 OF THE ACT. 2 ITA NO.675/MDS/2015 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSE SSMENT YEAR 2005-06 ON 21.06.2006 DECLARING TOTAL INCOME OF ` 1,43,295/- AND AGRICULTURAL INCOME OF ` 10,000/-. INFORMATION WAS RECEIVED FROM ITO., SALARY WARD-II(4), CHENNAI, STA TING THAT, DURING THE FINANCIAL YEAR 2004-05 THE BROTHER OF TH E ASSESSEE MR. C.K.THEERTHAGIRI HAD CLAIMED TO HAVE SOLD HIS 1 /5 TH SHARE OF AGRICULTURAL LAND ALONG WITH THE ASSESSEE WHO A LSO HAS 1/5 TH SHARE. HOWEVER, IT WAS REVEALED ON ENQUIRY THAT TH E LAND SOLD WAS URBAN LAND. THEREFORE, THE CASE OF THE AS SESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT AND ADDIT IONS WERE MADE TOWARDS LONG TERM CAPITAL GAINS OF RS. 74 ,65,971/. 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE BY S TATING THAT THE ISSUE WAS ALREADY AGITATED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX UNDER SECTIO N 264 OF THE ACT AND THEREFORE, THE APPEAL IS NOT MAINTAI NABLE. 5. BEFORE US, AT THE OUTSET, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAD NOT WAIVED 3 ITA NO.675/MDS/2015 HIS RIGHT OF APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS PROVIDED UNDER SECTION 264( 4)(A) OF THE ACT AND THEREFORE THE ORDER PASSED BY THE LEARN ED COMMISSIONER OF INCOME TAX UNDER SECTION 264 IS WIT HOUT JURISDICTION AND THEREFORE VOID AB-INITIO. 6. WHEN THE BENCH QUERIED THE LEARNED DEPARTMENTAL REPRESENTATIVE TO CLARIFY WHETHER THE ASSESSEE HAS WITHDRAWN HIS RIGHT OF APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX, HE COULD NOT COME OUT W ITH ANY MATERIALS ON RECORD TO SUPPORT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THEREFORE, IN THIS CIRCUMSTANCE, WE HAVE NO OTHER OPTION BUT TO PRESUM E THAT THE ASSESSEE IN HIS PROCEEDINGS BEFORE THE LEARNED CIT HAS NOT WITHDRAWN HIS RIGHT OF APPEAL BEFORE THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS), AS MANDATED B Y SECTION 264(4)(A) OF THE ACT AND ACCORDINGLY, WE AR E OF THE VIEW THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) IS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE AS SESSEE ON THAT GROUND. FOR THE ABOVE STATED REASONS, WE HEREB Y SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCO ME TAX 4 ITA NO.675/MDS/2015 (APPEALS) AND REMIT BACK THE MATTER TO HIS FILE IN ORDER TO HEAR THE APPEAL AFRESH AND ADJUDICATE ALL THE GROUNDS RA ISED BY THE ASSESSEE IN ACCORDANCE WITH LAW AND MERIT, AFTE R AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH JULY, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 15 TH JULY, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF .