M.K.Kotirathnam, CHENNAI V. ITO, CHENNAI

ITA 996/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9309 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR B NISHAL
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D' BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.996/MDS/2015 / ASSESSMENT YEAR : 2008-09 SHRI M.K.KOTIRATHNAM NEW NO.16, OLD NO.12 GANDHI AVENUE PURASAWALKAM CHENNAI 600 084 VS. THE INCOME TAX OFFICER NON-CORPORATE WARD 10(2) CHENNAI [PREVIOUSLY ITO BW XIII(3) [PAN AAQPK 5883 P ] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI N. DEVANATHAN, ADVOCATE /RESPONDENT BY : DR. B . NISHAL, JCIT / DATE OF HEARING : 14 - 03 - 2016 ! / DATE OF PRONOUNCEMENT : 12 - 05 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-12, CHENN AI, DATED 13.2.2015 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. THIS APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON- PROSECUTION BY AN ORDER DATED 20.7.2015. THE ASSE SSEE FILED THE MISCELLANEOUS PETITION PRAYING FOR RECALL OF THE OR DER OF THIS TRIBUNAL ITA NO.996/15 :- 2 -: DATED 20.7.2015. THIS TRIBUNAL, AFTER HEARING BOTH PARTIES, BY AN ORDER DATED 27.11.2015 RECALLED ITS ORDER DATED 20.7.2015 AND RESTORED THE APPEAL ON FILE ACCORDINGLY, THE APPEAL WAS POSTED FOR FINAL DISPOSAL. 3. SHRI. N. DEVANATHAN, LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE CIT(A) REJECTED THE APPEAL OF THE ASSESSE E ON THE GROUND THAT THE ASSESSEE FAILED TO ATTEND BEFORE HIM ON T HE SPECIFIED DATE. ACCORDING TO THE LD. COUNSEL, THE CIT(A), BEING THE FIRST APPELLATE AUTHORITY, IS EXPECTED TO DISPOSE OF THE APPEAL ON MERIT. THEREFORE, REJECTION OF THE APPEAL FOR NON-APPEARANCE OF THE ASSESSEE I S NOT JUSTIFIED. 4. ON THE CONTRARY, DR. B.NISCHAL, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SEVERAL OPPORTUNITIES WERE PROVIDED BY THE CIT(A). HOWEVER, THE ASSESSEE HAS NOT AVAILED ANY OF THE OPPORTUNITIES. NO MATERIAL WAS FILED BEFORE THE CI T(A) TO SUBSTANTIATE THE GROUNDS OF APPEAL. THEREFORE, THE CIT(A) FOUND THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL AND ACC ORDINGLY, THE SAME WAS DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. TH E CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY PLACING HIS RELIANCE ON THE DECISION OF THE DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF CIT VS MULTIPLAN (INDIA) PVT. LTD., 38 ITD 320. WE HAVE GONE THROUGH THE DE CISION OF THE DELHI BENCH OF THIS TRIBUNAL IN MULTIPLAN (INDIA) PVT. LT D (SUPRA). THE ITA NO.996/15 :- 3 -: TRIBUNAL FOUND THAT THERE WAS A DEFECT IN THE APPEA L AND THE ASSESSEE HAS NOT RECTIFIED THE DEFECT, THEREFORE, THE APPEAL WAS DISMISSED AS NOT ADMITTED. IN THE CASE BEFORE US, IT IS NOBODYS CA SE THAT THE APPEAL HAS ANY DEFECT. NO DEFECT MEMO WAS ISSUED BY THE C IT(A). IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DECISION IN THE CASE OF MULTIPLAN (INDIA) PVT. LTD (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. MOREOVER, THE POWERS OF THE CIT(A) ARE COTERMINOUS WITH THAT OF THE ASSESSING O FFICER. THE CIT(A) IS EMPOWERED TO ASSESS ALL THE INCOME EVEN THOUGH S OME OF WHICH WAS OMITTED TO BE CONSIDERED BY THE ASSESSING OFFIC ER. THE CIT(A) IS SPECIFICALLY EMPOWERED TO ENHANCE THE ASSESSMENT MA DE BY THE ASSESSING OFFICER. THEREFORE, THE CIT(A) HAS AN ON EROUS RESPONSIBILITY TO PERFORM UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961. BY REJECTING THE APPEAL OF THE ASSESSEE FOR NON-PROSE CUTION, THE CIT(A) IS DISOWNING HIS RESPONSIBILITY IN CONSIDERING THE SOU RCE OF INCOME WHICH WAS OMITTED TO BE CONSIDERED BY THE ASSESSING OFFIC ER AND ENHANCE THE ASSESSMENT WHICH IS SPECIFICALLY CONFERRED ON H IM UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961. SINCE THE POWE R TO ENHANCE THE ASSESSMENT IS CONFERRED ON THE CIT(A), THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT THE CIT(A) CANNOT IGNORE TH E RESPONSIBILITIES BY SIMPLY DISMISSING THE APPEAL FOR NON-PROSECUTION . THE CIT(A) BEING THE SENIOR MOST OFFICER OF THE DEPARTMENT, IS EXPEC TED TO CALL FOR THE ITA NO.996/15 :- 4 -: RECORDS FROM THE ASSESSING OFFICER IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT AND DISPOSE OF THE APPEAL ON MERIT. IN OTHER WORDS, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-PROSECUTION ESPECIALLY WHEN THE LEGISLATURE CONFERRED ON HIM TH E POWER TO ENHANCE THE ASSESSMENT. IN THOSE CIRCUMSTANCES, THIS TRIB UNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) IS EXPECTED TO D ISPOSE OF THE APPEAL ON MERIT. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BA CK TO HIS FILE. THE CIT(A) SHALL DISPOSE OF THE APPEAL ON MERIT AFTER G IVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THA T IF THE ASSESSEE FAILS TO APPEAR BEFORE THE CIT(A) ON THE APPOINTED DATE, IT IS OPEN TO THE CIT(A) TO CALL FOR THE RECORDS FROM THE ASSESSI NG OFFICER AND DISPOSE OF THE GROUNDS RAISED BY THE ASSESSEE ON M ERIT. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 12 TH MAY, 2016 RD ITA NO.996/15 :- 5 -: &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF