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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI A. MOHAN ALANKAMONY
आदेश /O R D E R
PER N.R.S. GANESAN, JUDICIAL MEMBER:
This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) -3, Chennai, dated 30.06.2017 and pertains to assessment year 2009-10.
There is a delay of 13 days in filing the appeal by the assessee. The assessee has filed application for condonation of delay. Having heard the Ld.counsel for the assessee and the Ld. Departmental Representative, we find that there was sufficient cause on the part of the assessee for not filing the appeal within the time limit. Therefore, the delay of 13 days is condoned and the appeal of the assessee is admitted.
Having heard Sh. N. Devanathan, the Ld.counsel for the assessee and Smt. Ruby George, the Ld. Departmental Representative, we find that the CIT(Appeals) has dismissed the appeal without going into the merits. This Tribunal is of the considered opinion that when an appeal is filed by the assessee, the CIT(Appeals) has no power to dismiss the appeal for non- prosecution. The decision of Delhi Bench of this Tribunal in CIT v.
Multiplan India (P.) Ltd. (1991) 38 ITD 320, referred by the CIT(Appeals), is not applicable to the case of the assessee. The case of the assessee in Multiplan India (P.) Ltd. (supra) was an appeal filed by the assessee before the Tribunal. The Tribunal found that since there was defect in filing the appeal, it has to be treated as not admitted or not taken on file. Such a procedure as laid down in Multiplan India (P.) Ltd. (supra) is not there in filing appeal before the CIT(Appeals).
When the assessee files an appeal, if at all there is any defect, the same has to be pointed out to the assessee and sufficient opportunity should be given to the assessee to rectify the same. Once the defect was rectified, the CIT(Appeals) being a senior most officer in the Department, is expected to dispose the appeal on merit. In case the CIT(Appeals) is allowed to dismiss the appeal for non-prosecution, the power conferred under the scheme of Income-tax Act to enhance the assessment would be defeated.
This Tribunal is of the considered opinion that under the scheme of Income-tax Act, the CIT(Appeals) has jurisdiction coterminous to that of the Assessing Officer and whatever the Assessing Officer failed to do can also be done by the CIT(Appeals) in the course of exercising his appellate jurisdiction. If the CIT(Appeals) simply dismisses the appeal for non-prosecution, then the power conferred under the scheme of the Income-tax Act would be meaningless.
Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has no authority or jurisdiction to dismiss the appeal for non-prosecution. In case the assessee fails to appear, it is upto the CIT(Appeals) to call for records from the concerned Assessing Officer and pass a speaking order on merit. The CIT(Appeals) cannot disown his responsibility by dismissing the appeal for non- prosecution. Therefore, this Tribunal is unable to uphold the order of the CIT(Appeals).
Accordingly, the order of the CIT(Appeals) is set aside and the entire issue raised by the assessee is remitted back to the file of the CIT(Appeals). The CIT(Appeals) is hereby directed to dispose the appeal on merit. It is made clear that if the assessee fails to appear before the CIT(Appeals) after giving sufficient opportunity, it is open to the CIT(Appeals) to call for records from the concerned Assessing Officer and pass a speaking order on merit in exercise of power conferred on him under the scheme of the Income-tax Act.
With the above observation, the appeal of the assessee is allowed for statistical purposes.