R.SANTHANALAKSHMI,CHENNAI vs. ITO, CHENNAI
What did the Tribunal hold?
The Tribunal held that the CIT(Appeals) has a statutory responsibility to decide appeals on merit, irrespective of the assessee's appearance. Dismissing for non-prosecution without considering the merits was incorrect.
What were the facts?
The assessee's appeal before the CIT(Appeals) was dismissed for non-prosecution. The assessee argued that the CIT(Appeals) should have decided the appeal on merits, even in the absence of the assessee's appearance.
What were the issues?
Whether the CIT(Appeals) can dismiss an appeal for non-prosecution without deciding it on merits, and if the reopening of assessment was valid.
Which sections of the Income-tax Act were involved?
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Cases cited in this judgment(1)Show listHide list
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- CIT v. Multiplan India Ltd.2,267 citing38 ITD 320 · 1991 · ITAT
Income Tax Appellate Tribunal, ‘C’ 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)-12, Chennai, dated 13.02.2015 and pertains to assessment year 2008-09.
Shri Aravindan, the Ld. representative for the assessee, submitted that the Assessing Officer made an addition of `21,84,433/- under Section 68 of the Income-tax Act, 1961 (in short 'the Act'). According to the Ld. representative, out of `21,84,433/-, `4,00,000/- was added as unexplained investment and another sum of ` 17,84,433/- was added as unexplained cash credit. The Ld. representative further submitted that Assessing Officer reopened the assessment after expiry of four years from the date of the assessment year in which the return was filed. According to the Ld. representative, there is no negligence on the part of the assessee in furnishing all particulars required for completing the assessment. Therefore, the reopening of assessment was also invalid.
3. Referring to the order of the CIT(Appeals), the Ld. representative for the assessee submitted that that the CIT(Appeals) dismissed the appeal of the assessee for non- prosecution by placing reliance on the decision of Delhi Bench of this Tribunal in CIT v. Multiplan (India) Pvt. Ltd. (38 ITD 320). According to the Ld. representative, the CIT(Appeals) is expected to dispose the appeal on merit irrespective of the fact whether the assessee appeared before him or not. In the case before us, according to the Ld. representative, the assessee appeared before this Tribunal which is apparent from the order of the CIT(Appeals).
Therefore, an opportunity may be given to the assessee to present her case on merit before the CIT(Appeals).
We have heard Shri A.V. Sreekanth, the Ld. Departmental Representative also. The Ld. D.R. submitted that the CIT(Appeals) rejected the appeal of the assessee since no one appeared before him. According to the Ld. D.R., the case was originally posted on 21.05.2014 and later it was adjourned to 03.06.2014.
Subsequently, the assessee’s case was transferred to the present jurisdiction and posted for hearing on 11.02.2015. When the appeal was taken up for hearing on 11.02.2015, no one appeared for the assessee and there was no request for adjournment also.
Therefore, according to the Ld. D.R., the CIT(Appeals) dismissed the appeal for non-prosecution.
We have considered the rival submissions on either side and perused the relevant material available on record. The CIT(Appeals) rejected the appeal of the assessee for non- prosecution. The fact remains that the assessee appeared before the CIT(Appeals) on 21.05.2014. Subsequently, the appeal was transferred to the present jurisdiction and it was posted for hearing on 11.02.2015. On 11.02.2015, it appears that no one appeared for assessee. Therefore, the CIT(Appeals) dismissed the appeal.
Under the scheme of Income-tax Act, the CIT(Appeals) has coterminous power as that of the Assessing Officer. In other words, the CIT(Appeals) has all the powers to assess the income which is omitted to be assessed by the Assessing Officer, by way of enhancement. Under the scheme of Income-tax Act, an onerous responsibility was entrusted with the CIT(Appeals) to complete the assessment on the basis of material available on record. By rejecting the appeal of the assessee for non-prosecution, the CIT(Appeals) disowns his responsibility of enhancing the assessment which is conferred on him under the statute, namely, Income-tax Act. This Tribunal is of the considered opinion that the CIT(Appeals) cannot ignore such an onerous responsibility conferred on him under the scheme of Income-tax Act merely because the assessee failed to appear before him. This Tribunal is of the considered opinion that even if the assessee has failed to appear before him, the CIT(Appeals) is expected to dispose the appeal on merit after calling for records from the Assessing Officer.
Unfortunately, such an exercise was not done by the CIT(Appeals).
The CIT(Appeals) by placing reliance on the decision of this Tribunal in Multiplan (India) Pvt. Ltd. (supra) dismissed the appeal of the assessee. The case of Multiplan (India) Pvt. Ltd. (supra) was in respect of defective appeal filed before this Tribunal. In the present case, It is nobody‘s case that the appeal filed by the assessee before the CIT(Appeals) is a defective one. In fact, no defective memo was issued by the CIT(Appeals). Therefore, the decision in the case of Multiplan (India) Pvt. Ltd. (supra) is not applicable to the facts of the case.
In view of the above, this Tribunal is of the considered opinion that the CIT(Appeals) is expected to dispose the appeal on merit irrespective of the fact whether the assessee appeared before him or not. 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) shall consider the issue raised by the assessee on merit and thereafter decide the same in accordance with after giving reasonable opportunity to the assessee. It is made clear that if the assessee fails to appear before the CIT(Appeals) after issue of notice, then it is open to the CIT(Appeals) to call for the records from the Assessing Officer and dispose the appeal on merit.
With the above observation, the appeal of the assessee is allowed for statistical purposes.
Order pronounced on 19th February, 2016 at Chennai.
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