Kovai Sarala, CHENNAI V. ACIT, CHENNAI

ITSSA 35/CHNY/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8781 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 30-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Assessee Lawyers: N DEVANATHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.(SS) A. NO. 35/MDS/2012 (BLOCK PERIOD: 1.4.1996 TO 31.3.2002 & 1.4.2002 TO 18 .3.203) MS. KOVAI SARALA, 18, VENKATESA NAGAR, SALIGRAMAM, CHENNAI - 600 093. PAN : ALKPS 4835 Q (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(3), CHENNAI - 600 034 . (RESPONDENT) APPELLANT BY : SHRI N. DEVANATHAN, ADVOCATE RESPONDENT BY : DR. S. MOHARANA, CIT-DR DATE OF HEARING : 04.02.2013 DATE OF PRONOUNCEMENT : 04.02.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE ASSESSEE, HER GRIEVAN CE IS THAT LD. CIT(APPEALS) HAD DISMISSED HER APPEAL FOR A REASON THAT SHE DID NOT ENTER APPEARANCE ON THE DATES OF POSTINGS FOR HEARI NG. I.T.(SS) A. NO. 35/MDS/12 2 2. LEARNED A.R. SUBMITTED THAT LD. CIT(APPEALS) HAD NO POWER TO DISMISS APPEAL FILED BEFORE HIM FOR NON-PROSECUTION , BUT HE HAD TO DEAL SUCH APPEAL ON MERITS. 3. PER CONTRA, LEARNED D.R. FAIRLY ADMITTED THAT TH E APPEAL HAD TO BE RESTORED BACK TO LD. CIT(APPEALS) TO BE DECIDED ON MERITS. 4. WE FIND THAT THE CIT(APPEALS) HAD NOT ADJUDICATE D THE ISSUES ON MERITS BUT HAD DISMISSED IT FOR NON-PROSECUTION. NO DOUBT, THE ASSESSEE MIGHT HAVE BEEN GIVEN OPPORTUNITY TO ENTER APPEARANCE, BUT SHE HAD FAILED TO DO SO. NEVERTHELESS, WE FIN D THAT THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S QUESTNET ENTERPRISES INDIA PRIVATE LIMITED V. ACIT IN I.T.A. NOS. 1821 & 1822/MDS/2011 HAD CONSIDERED A SIMILAR ISSUE. IN I TS ORDER DATED 18 TH JANUARY, 2012, THIS TRIBUNAL HELD AT PARA 4 AS UND ER:- 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 I.T.(SS) A. NO. 35/MDS/12 3 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 SET ASIDE THE ORDER OF LD. CIT(APP EALS) AND REMIT THE APPEAL BACK TO HIM FOR CONSIDERATION DENOVO IN ACCO RDANCE WITH LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE FOR PRESEN TING HER CASE. 6. 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 4 TH OF FEBRUARY, 2013, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 4 TH FEBRUARY, 2013. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-I, CHENNAI/ CIT, CENTRAL-I, CHENNAI/D.R./GUARD FILE