BYD INDIA PRIVATE LIMITED,CHENNAI vs. ACIT CORPORATE CIRCLE 1(2), CHENNAI

Both the appeals of the assessee are directed against the common order passed by the Commissioner of Income Tax

When the appeals were taken for hearing, Shri R.

Having heard the Ld.counsel for the assessee and the Ld. Departmental Representative, this Tribunal finds that there was a reasonable cause in not filing the appeals within the prescribed time. Therefore, the delay of 3 days in filing the appeals before this Tribunal is condoned and both the appeals are admitted.

Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the CIT(Appeals) dismissed the appeals for non- prosecution without discussing anything on merit. According to the Ld. counsel, the power of the CIT(Appeals) is coterminous to that of the Assessing Officer. Moreover, the scheme of the Income-tax Act specifically provides power to the CIT(Appeals) to enhance the assessment. Therefore, according to the Ld. counsel, the 3 IT(TP)A No.39/Chny/19 I.T.A. No.1373/Chny/19 CIT(Appeals) has no authority to dismiss the appeals for non- prosecution. Irrespective of the fact whether the assessee appeared before him or not, he is expected to call for records from the Assessing Officer and dispose of the grounds filed by the assessee, on merit. In this case, according to the Ld. counsel, such an exercise was not done by the CIT(Appeals), therefore, the matter may be remitted back to the file of the CIT(Appeals).

We heard Dr. M. Srinivasa Rao, the Ld. D.R. also. The Ld. D.R. very fairly submitted that the matter may be remitted back to the file of the CIT(Appeals) for disposal of the appeals on merit.

Having heard the Ld.counsel for the assessee and the Ld. D.R., this Tribunal is of the considered opinion that the CIT(Appeals) has no authority / power to dismiss the appeals for non-prosecution. Under the scheme of the Income-tax Act, onerous responsibility was assigned to the CIT(Appeals) to enhance the assessment in case the Assessing Officer has not assessed the income of the assessee properly. Such a responsibility to enhance the assessment can be exercised only if the CIT(Appeals) considers the case on merit.

There may be various reasons for the assessee for not appearing before the CIT(Appeals) when the appeals were taken up for hearing. One of the reasons, presumably, to avoid the enhancement of income during the course of proceedings before the CIT(Appeals), the assessee might have avoided to appear before him. However, the CIT(Appeals), being an authority exercising judicial power under the scheme of Income-tax Act, cannot disown his responsibility of disposing of appeals on merit even by enhancing the assessment wherever necessary.

This Tribunal is of the considered opinion that whether the assessee appeared before him or not when the appeal was taken up for hearing before him, the CIT(Appeals) is expected to call for 5 IT(TP)A No.39/Chny/19 I.T.A. No.1373/Chny/19 records from the Assessing Officer and adjudicate the same in accordance with law after re-appreciating the material available on record. Since such an exercise was not done by the CIT(Appeals), this Tribunal is of the considered opinion that the matter needs to be re-examined by the CIT(Appeals). Accordingly, the order of the CIT(Appeals) is set aside and the entire issue raised by the assessee in the grounds of appeal is remitted back to the file of the CIT(Appeals). The CIT(Appeals) shall re-examine the matter on the basis of the material available on record and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee.

In case the assessee fails to appear before the CIT(Appeals) even after due notice, it is open to the CIT(Appeals) to dispose the appeals on merit after reappreciating the material available on record, including the assessment record.

With the above observation, both the appeals of the assessee are allowed for statistical purposes.