M/S.KOSEI MINDA ALUMINIUM CO. PVT. LTD., KANCHIPURAM V. ACIT, CO. CIRCLE - 4 (2), CHENNAI

ITTPA 75/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4314 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 24-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 21-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S RAMAKRISHNAN
• Assessee Lawyers: N DEVANATHAN
• Keywords: Set aside
• Section: 250; 251

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.(TP)A.NOS.75 & 77/CHNY/2019 ( [ [ / ASSESSMENT YEARS: 2013-14 & 2014-15) M/S. KOSEI MINDA ALUMINIUM COMPANY PVT. LTD., NO.20A & 20BB SIPCOT VADAKKUPATTU VILLAGE, KANCHEEPURAM. VS THE ACIT, COMPANY CIRCLE 4(2), CHENNAI. PAN: AADCV5849G ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI N. DEVANATHAN, ADVOCATE / RESPONDENT BY : SHRI S. RAMAKRISHNAN, CIT /DATE OF HEARING : 23.01.2020 /DATE OF PRONOUNCEMENT : 24.02.2020 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 8, CHENNAI DATED 20.08.2019 AND PERTAINS TO THE ASSESSMENT YEARS 2013-14 & 2014-15. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS, WE HEARD THE SAME TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2 IT(TP)A NOS.75 & 77/CHNY/2019 2. WHEN THE APPEAL IS TAKEN UP FOR HEARING SHRI N. DEVANATHAN THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS NOT PASSED THE ORDER ON MERIT. HE SIMPLY DISMISSED THE APPEALS FOR NON-PROSECUTION WITHOUT GOING THROUGH THE MERIT OF THE APPEALS. THEREFORE THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED BY THE ASSESSEE IN THE APPEALS MAY BE REMITTED BACK TO THE FILE OF THE CIT(A) FOR RECONSIDERATION ON MERIT. 3. WE HEARD SHRI S. RAMAKRISHNAN, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. IT IS AN ADMITTED FACT THAT THE CIT(A) DISMISSED THE APPEALS FOR NON-PROSECUTION WITHOUT CONSIDERING ANYTHING ON MERIT. SECTION 250 & 251 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ENABLES THE CIT(A) TO CONDUCT FURTHER ENQUIRY IF HE FEELS NECESSARY AND ALSO EMPOWERS THE CIT(A) TO ENHANCE THE ASSESSMENT MADE BY THE ASSESSING OFFICER. SUCH AN ONEROUS RESPONSIBILITY CONFERRED ON THE CIT(A) WAS SIMPLY IGNORE ON THE GROUND THAT THE ASSESSEE HAS NOT APPEARED BEFORE HIM INSPITE OF REPEATED ADJOURNMENTS. THERE MAY BE VARIOUS REASONS FOR THE ASSESSEE FOR NOT APPEARING BEFORE THE CIT(A). ONE OF THE REASON PRESUMABLY THERE MAY BE A CASE FOR ENHANCING OF ASSESSMENT ORDER. IN ORDER TO AVOID SUCH ENHANCEMENT, THE ASSESSEE MIGHT HAVE 3 IT(TP)A NOS.75 & 77/CHNY/2019 DECIDED NOT TO APPEAR BEFORE THE CIT(A). THEREFORE THE CIT(A) CANNOT TAKE ADVANTAGE OF NON APPEARANCE OF THE ASSESSEE AND DISMISS THE APPEAL. THE CIT(A) BEING A RESPONSIBLE OFFICER HAVING POWER TO ENHANCE THE ASSESSMENT EXPECTED TO CALL FOR THE RECORDS OF THE ASSESSING OFFICER AND DECIDE THE APPEAL ON MERIT ONE WAY OR OTHER. THE CIT(A) HAS ALSO REFERRED TO THE JUDGMENT OF THE APEX COURT IN SHRI RAM SIROMANI TRIPATHI AND OTHERS, CA NO.9142-9144 OF 2012 FOR DISMISSING THE CASE FOR NON-PROSECUTION. THE POWER OF THE CIT(A) IS CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER. THE POWER OF THE CIT(A) STAND SPELT OUT IN SECTION 250 & 251 OF THE ACT. SUPREME COURT BEING THE HIGHEST CONSTITUTIONAL COURT OF THE COUNTRY HAS EVERY DISCRETION TO DISMISS THE APPEAL OR TO PASS ORDER ON MERIT ACCORDING TO THE FACTS AND CIRCUMSTANCE OF THE CASE. THEREFORE THE CIT(A) CANNOT DRAW ANY STRENGTH FROM THE JUDGMENT OF THE APEX COURT IN SHRI RAM SIROMANI TRIPATHI AND OTHERS SUPRA. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) UNDER THE SCHEME OF THE INCOME TAX ACT, MORE PARTICULARLY AS PROVIDED U/S.250 & 251 OF THE ACT HAS NO POWER TO DISMISS THE APPEAL FOR NON-PROSECUTION. IN OTHER WORDS, ONCE THE APPEAL IS FILED BY THE ASSESSEE, THE RESULT OF THE APPEAL SHOULD GO TO ITS LOGICAL CONCLUSION THEREBY THE CIT(A) IS 4 IT(TP)A NOS.75 & 77/CHNY/2019 EXPECTED TO DISPOSE THE APPEAL ON MERIT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEARED BEFORE HIM OR NOT. 4. THIS TRIBUNAL REPEATEDLY POINTING OUT ON VARIOUS OCCASIONS THAT THE CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-PROSECUTION OF THE ASSESSEE. IRRESPECTIVE OF THE REPEATED ORDERS PASSED BY THIS TRIBUNAL, THE CIT(A) CONTINUES TO DISMISS THE APPEAL FOR NON- PROSECUTION WITHOUT FOLLOWING THE STATUTORY PROVISION AS PROVIDED U/S.250 & 251 OF THE ACT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS KIND OF ATTITUDE SHALL BE PUT TO AN END IMMEDIATELY. THE CENTRAL BOARD OF DIRECT TAXES AND THE PRINCIPAL COMMISSIONER OF INCOME TAX SHALL TAKE IMMEDIATE REMEDIAL MEASURES TO SEE THAT THIS KIND OF ATTITUDE MAY NOT CONTINUE IN FUTURE. WITH THE ABOVE OBSERVATION THE ORDER OF THE CIT(A) IS SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK TO THE FILE OF THE CIT(A). THE CIT(A) SHALL DISPOSE OF THE APPEALS ON MERIT AFTER CALLING FOR THE RECORDS OF THE ASSESSING OFFICER IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEAR BEFORE HIM OR NOT AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5 IT(TP)A NOS.75 & 77/CHNY/2019 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 24 TH FEBRUARY, 2020 AT CHENNAI. SD/- SD/- ( ) (RAMIT KOCHAR) /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 24 TH FEBRUARY, 2020. RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. [ /GF