AMBATTUR INFRA DEVELOPERS,CHENNAI vs. ACIT, NCC-7(1), CHENNAI

The appeal of the assessee is directed against the order passed by the Commissioner of Income Tax (Appeals)–7, Chennai dated 26.09.2018 and pertains to the assessment year 2011-12.

Shri N. Vijay Kumar, the Ld. Representative for the assessee submitted that the CIT(A) dismissed the appeal of the assessee for non-prosecution without discussing anything on merit. According to the Ld. representative, the CIT(A) is expected to dispose the appeal on merit by a speaking order. Since, the CIT(A) has not applied his mind, the Ld. representative submitted that the matter may be remitted back to the CIT(A) for re-consideration.

We heard Shri AR.V. Sreenivasan, the Ld. Departmental Representative also. It is not in dispute that the CIT(A) has not discussed the appeal of the assessee on merit. He simply dismissed the appeal on the ground that the assessee sought for adjournment on three occasions. The power of the CIT(A) to dispose the appeal flows from Section 250 & 251 of the Income Tax Act, 1961 (in short ‘the Act’). Section 250(4) of the Act, empowers the CIT(A) to make further enquiry as he thinks fit. Section 250(1) of the Act, empowers the CIT(A) to enhance the assessment. Therefore it is obvious that the power of the CIT(A) is co-terminus with that of the Assessing Officer. In other words, the power to enhance the assessment is an onerous responsibility conferred on the CIT(A) to safeguard the interest of the Revenue. When the responsibility was conferred on the CIT(A) by the Parliament, the CIT(A) cannot dismiss the appeal for non-appearance of the assessee or the assessee sought for adjournment. Irrespective of the fact whether the assessee appeared before him or not, the CIT(A) is expected to call for the records of the Assessing Officer and re-appreciate the material available on record and pass a speaking order considering all the grounds raised by the assessee. Since such an exercise was not done, this Tribunal is of the considered opinion that the matter needs to be re-considered by the Assessing Officer.

It is also brought to the notice of the Bench that the CBDT instructed all the CIT(A) to dispose of minimum 50 appeals every month. In order to reach the target fixed by the CBDT, it appears all the CIT(A) are dismissing the appeals of the assessee without considering the same on merit. This kind of attitude cannot be allowed to continue any further. This Tribunal time and again pointed out that the CIT(A) has to pass order on merit and he has no jurisdiction to dismiss the appeal for non-appearance or for non- prosecution. Irrespective of this, the CIT(A) continues to dismiss the appeals exparte without considering anything on merit. If this kind of attitude continues, the tax payer will lose confidence on the administration. We hope that the concerned Principal Chief Commissioner of Income Tax and CBDT shall take remedial measure immediately so that this kind of things may not happen in further. Even though this is a fit case for levying penalty for not-passing speaking order, this Tribunal is not doing so in exercise of its discretion hoping that the CIT(A) may not continue this practice 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 CIT(A). The CIT(A) shall dispose of the appeal on merit after giving a reasonable opportunity to the assessee. In case the assessee fails to appear before the CIT(A) on receipt of notice of hearing, it is open to the CIT(A) to dispose the appeal on merit after calling for the records of the Assessing Officer by a speaking order. With the above observation, the appeal of the assessee is allowed for statistical purposes.

In the result, the appeal filed by the assessee stands allowed for statistical purposes.