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Income Tax Appellate Tribunal, S M C BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN
आदेश /O R D E R
This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals).-11, Chennai, dated 20.03.2015 and pertains to assessment year 2008-09.
Sh. B.S. Purshotham, the Ld. representative for the assessee, submitted that the CIT(Appeals) dismissed the appeal for non-prosecution by following the order of Delhi Bench of this Tribunal in CIT v. Multiplan (India) Pvt. Ltd. 38 ITD 320. According to the Ld. representative, the CIT(Appeals) ought to have disposed the appeal on merit instead of dismissing the same for non- prosecution. Therefore, the Ld. representative submitted that an opportunity may be given to the assessee to present all the facts before the CIT(Appeals) so as to enable him to dispose the same on merit.
On the contrary, Sh. P. Radhakrishnan, the Ld. Departmental Representative, submitted that the assessee claimed interest on the borrowed funds against the rental income. According to the Ld. D.R., the assessee has shown a meagre rental income with an intention of setting of the loss against the salary and other income.
Therefore, the Assessing Officer rejected the claim of the assessee.
According to the Ld. D.R., the property is under self-occupation and the assessee has not paid any rent for self-occupation.
I have considered the rival submissions on either side and perused the relevant material on record. On merit, the Assessing Officer disallowed the claim of interest on the borrowed funds against the income. On appeal, the CIT(Appeals) without adjudicating the matter on appeal, rejected the appeal on the ground that the assessee did not appear before him. The CIT(Appeals) placed his reliance on the decision of this Tribunal in Multiplan (India) Pvt. Ltd. (supra). In the case of Multiplan (India)
Pvt. Ltd. (supra), the Delhi Bench of the Tribunal found that there was defect in the appeal and the same was not rectified. Therefore, the Delhi Bench rejected the assessee’s appeal as unadmitted. In the case before me, it is not the case that there was any defect in the appeal and the same was not rectified. Therefore, the CIT(Appeals) is not correct in placing reliance on the decision of the Delhi Bench of this Tribunal in Multiplan (India) Pvt. Ltd. (supra).
This Tribunal is of the considered opinion that the CIT(Appeals) being a senior most officer, is expected to adjudicate the appeal on merit after calling for record from the Assessing Officer irrespective of the appearance of the assessee before him.
What is required to the CIT(Appeals) is to give an opportunity to the assessee to appear before him by issuing a notice. If the assessee has not appeared or chosen to avail the opportunity given by the CIT(Appeals), then it is open to the CIT(Appeals) always to pass an order on merit. However, dismissing the appeal for non-prosecution by a statutory authority may not be correct. Therefore, the order of the CIT(Appeals) is set aside and the entire issue is remitted back to his file. The CIT(Appeals) shall consider the issue on merit after giving a reasonable opportunity to the assessee. It is made clear that in case the assessee fails to appear before him, it is upto him to call for record from the Assessing Officer and decide the same on merit in accordance with law.
With the above observation, the appeal of the assessee is allowed.
Order pronounced on 7th August, 2015 at Chennai.