Shri P.Elumalai, CHENNAI V. The Addl.CIT, Pondicherry

ITA 741/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61195 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JUNIOR

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. 741/MDS/2012 (ASSESSMENT YEAR : 2003-04) SHRI P. ELUMALAI, NO.30, NADU STREET, 1 ST CROSS MURUNGAPAKKAM, PONDICHERRY 605 004. PAN : AAAPE1983E (APPELLANT) V. THE ADDL. COMMISSIONER OF INCOME TAX, RANGE I, PONDICHERRY. (RESPONDENT) APPELLANT BY : SHRI SAROJ KUMAR PARIDA, ADVOCATE RESPONDENT BY : SHRI K.E.B. RENGARAJAN, JUNIOR STANDING COUNSEL DATE OF HEARING : 06.06.2012 DATE OF PRONOUNCEMENT : 06.06.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE ASSESSEE, ITS GRIEVAN CE IS THAT CIT(APPEALS) DISMISSED ITS APPEAL FOR NOT ENTERING APPEARANCE ON THE DATES FIXED FOR HEARING. I.T.A. NO. 741/MDS/12 2 2. BEFORE US, LEARNED A.R. SUBMITTED THAT CIT(APPEA LS) WAS NOT HAVING ANY POWER TO DISMISS THE APPEAL WITHOUT DEAL ING WITH MERITS. 3. PER CONTRA, LEARNED D.R. SUPPORTED THE ORDER OF CIT(APPEALS). 4. WE HAVE PERUSED THE ORDER OF CIT(APPEALS) AND HE ARD THE RIVAL SUBMISSIONS. IT IS TRUE THAT ASSESSEE WAS GIVEN FI VE OPPORTUNITITIES FOR REPRESENTING ITS CASE. BUT ASSESSEE, ON ALL SUCH O CCASIONS, EITHER SOUGHT ADJOURNMENTS OR NOT RESPONDED. THE CIT(APPE ALS) DISMISSED THE APPEAL IN LIMINE FOR A REASON THAT LAW ASSISTED ONLY THE VIGILANT. BUT, NEVERTHELESS, WE FIND THAT THE CO-ORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF M/S QUESTNET ENTERPRISES INDIA PRIVA TE 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 I.T.A. NO. 741/MDS/12 3 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. 5. 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 CIT(APPEALS) AND REMIT THE APPEAL BACK TO HIM FOR CONSIDERATION DENO VO IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESS EE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE COURT ON WEDNESDAY, THE 6 TH OF JUNE, 2012, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 6 TH JUNE, 2012. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-XII, CHENNAI- 34/ CIT, PONDICHERRY/D.R./GUARD FILE