Mr. T.Mohamed Ameen, CHENNAI V. ACIT, CHENNAI

ITA 679/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64593 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: S SRIDHAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 679/MDS/2012 (ASSESSMENT YEAR : 2007-08) SHRI T. MOHAMED AMEEN, NO.27, V.V. KOIL STREET, PERIAMET, CHENNAI - 600 003. PAN : AAAPA8464A (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE XI, CHENNAI - 600 034 . (RESPONDENT) APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE RESPONDENT BY : SHRI ANIRUDH RAI, CIT DATE OF HEARING : 26.11.2012 DATE OF PRONOUNCEMENT : 26.11.2012 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 FOR NON-PROSECUTION. AS PER THE CIT(A PPEALS), DESPITE EIGHT POSTINGS, ASSESSEE HAD NOT APPEARED AND THERE WAS NO RESPONSE EVEN TO THE NOTICES SENT TO COUNSEL OF THE ASSESSEE. I.T.A. NO. 679/MDS/12 2 2. WE FIND FROM THE ORDER OF CIT(APPEALS) THAT THE CIT(APPEALS) HAD NOT CONSIDERED THE MERITS OF THE CASE, BUT HAD DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. NO DOU BT, THE ASSESSEE MIGHT HAVE BEEN GIVEN OPPORTUNITY TO ENTER APPEARAN CE, BUT HAD FAILED TO DO SO. NEVERTHELESS, WE FIND THAT THE C O-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S QUESTNET ENTERPRIS ES INDIA PRIVATE LIMITED 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 UNDER:- 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 A SSESSEE. AS PER SUB-SECTION (6) OF SECTION 250 OF THE ACT, WHICH PR ESCRIBES THE PROCEDURE TO BE FOLLOWED BY A CIT(APPEALS), AN ORDE R OF CIT(APPEALS) DISPOSING OF AN APPEAL SHALL BE IN WR ITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION TA KEN THEREON AND REASONS FOR THE DECISION. IN OTHER WORDS, THER E IS NO POWER VESTED ON CIT(APPEALS) TO DISMISS THE APPEAL OF AN ASSESSEE FOR NON-PROSECUTION OR NON-APPEARANCE. HE HAS TO DEAL WITH THE CASE ON MERITS IN ACCORDANCE WITH LAW. IN ANY CASE, HER E, ASSESSEE HAD FILED AN APPLICATION FOR ADJOURNMENT ON 28 TH OCTOBER, 2011 AND NOTHING WAS MENTIONED BY CIT(APPEALS) ON SUCH ADJO URNMENT PETITION. WE ARE, THEREFORE, OF THE OPINION THAT T HE MATTER HAS TO GO BACK TO CIT(APPEALS) FOR CONSIDERATION AFRES H FOR BOTH THE YEARS. WE, THEREFORE, SET ASIDE THE ORDER OF C IT(APPEALS) FOR BOTH THE YEARS AND REMIT IT BACK TO HIM FOR CON SIDERATION DE NOVO IN ACCORDANCE WITH LAW, AFTER GIVING DUE OPPOR TUNITY TO THE ASSESSEE FOR PRESENTING ITS CASE. I.T.A. NO. 679/MDS/12 3 3. WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY CO-OR DINATE BENCH OF THIS TRIBUNAL AND HOLD THAT THE CIT(APPEALS) WAS OBLIGED TO CONSIDER THE CASE ON MERITS AND COULD NOT DISMISS F OR WANT OF PROSECUTION. 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. THE ORDER WAS PRONOUNCED IN THE COURT ON MONDAY, TH E 26 TH OF NOVEMBER, 2012, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 26 TH NOVEMBER, 2012. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-IV, CHENNAI-34 (4) CIT-IX, CHENNAI (5) D.R. (6) GUARD FILE