SHRI M.DURAIVEL vs. THE COMMISSIONER OF INCOME T

T.C.(A) No.938 of 2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.07.2020 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN T.C.(A) No.938 of 2019 and CMP.No.24840 of 2019 M.Duraivel 2/156, Ponniamman Koil Street Injambakkam Chennai – 600 041. ... Appellant Vs. The Commissioner of Income Tax Chennai. Prayer : Tax Case (Appeal) filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai, dated 05.05.2016 in ITA.No.370/Mds/2016, Assessment Year : 2006-2007. 1/6 http://www.judis.nic.in T.C.(A) No.938 of 2019 For Appellant : Mr.V.Gangadharan For Respondent : Ms.R.Hemalatha, Senior Counsel JUDGMENT [Judgment of the Court delivered by T.S.SIVAGNANAM,J.] This appeal by the Assessee filed under Section 260A of the Income Tax Act, 1961 [the 'Act' for brevity] is directed against the order dated 05.05.2016, passed by the Income Tax Appellate Tribunal, 'A' Bench, Chennai in I.T.A.No.370/Mds/2016, for the Assessment Year 2006-2007. 2. The Tax Case appeal was admitted on 12.02.2017, on the following substantial questions of law : 1.Whether the Tribunal was right in passing an order merely on the ground that the documents relied on by the Assessee was not available in the file? 2.Whether the Tribunal was right in confirming the order of the respondent when the same was passed without looking into material on record? 2/6 http://www.judis.nic.in T.C.(A) No.938 of 2019 3. We have heard Mr.V.Gangadharan, learned counsel for the appellant and Ms.R.Hemalatha, learned Senior Standing Counsel for the Revenue. 4. The Tribunal, by the impugned order remanded the matter to the Assessing Officer for examining the documents viz., the Chitta and Adangal (revenue records) to ascertain as to whether the stand taken by the Assessee that the lands sold by him were agricultural lands. The reason for remanding the matter to the Assessing Officer is that the copies of the Chitta and Adangal, said to have been filed before the Assessing Officer was not available in the file of the Tribunal. Thus, the factual position appears to be that the revenue records were filed by the Assessee, and the same has been considered by the Assessing Officer, and an order has been passed. However, this order was interfered by the Commissioner of Income Tax (Appeals) by exercising his powers under Section 263 of the Act, wherein directed reassessment of those agricultural lands. Aggrieved by the order of the Commissioner, this Tax Case appeal is filed by the Assessee/appellant. 3/6 http://www.judis.nic.in T.C.(A) No.938 of 2019 Therefore, if the originals said to have been filed by the Assessee, had been directed to be produced by the Department representative, in all probabilities, the revenue records viz., the Chitta and Adangal, would have been made available for the consideration of the Tribunal. 5. Unfortunately, the Assessee, who was the appellant before the Tribunal was not present when the case was heard and he had also not engaged an Advocate, to argue on his behalf. The Tribunal records that its Registry placed a copy of the postal acknowledgement card to show that the notice has been served on the Assessee. 6. The Assessee has filed the copies of the revenue records in the typedset of papers, and on perusal of the same, the seal of the Assessing Officer is found at the bottom of the photostat copies of the documents. Therefore, it is clear that the documents were part of the assessment file. Considering the fact that the Tribunal had proceeded exparte on account of non-appearance of the Assessee, and though the Tribunal might have been justified by doing so, yet, considering the fact that the assessment order is of the year 2015, and the Assessing Officer has already perused the records 4/6 http://www.judis.nic.in T.C.(A) No.938 of 2019 and given relief to the Assessee, and the appeal filed by the Assessee before the Tribunal arises out of the order passed under Section 263 of the Act, this Court is of the view that the matter can be remanded back to the Tribunal for fresh decision on merits, after affording an opportunity to the Assessee. 7. For the above reasons, the Tax Case appeal is allowed, the impugned order is set aside and the matter is remanded back to the Tribunal for fresh decision on merits. The Tribunal may issue appropriate directions to the Revenue to produce the entire Assessment file, and after affording an opportunity of hearing to the Assessee, take a decision on merits in accordance with law. Consequently, the substantial questions of law are left open. No costs. Connected miscellaneous petition is closed. [T.S.S.J.,] [V.B.S.J.,] 09.07.2020 ds Index : Yes / No Speaking Order / Non-speaking Order 5/6 http://www.judis.nic.in T.C.(A) No.938 of 2019 T.S.SIVAGNANAM, J. and V.BHAVANI SUBBAROYAN, J. ds To: The Commissioner of Income Tax Chennai. T.C.(A) No.938 of 2019 09.07.2020 6/6 http://www.judis.nic.in