What did the Tribunal hold?

The Tribunal held that the CIT(Appeals) does not have the power to dismiss an appeal for non-prosecution and is expected to dispose of the appeal on its merits. The previous order of the CIT(Appeals) was set aside.

The assessee's appeal was dismissed by the CIT(Appeals) for non-prosecution. The assessee argued that the CIT(Appeals) lacks the power to dismiss an appeal for non-prosecution and requested another opportunity to present their case.

What were the issues?

Whether the CIT(Appeals) has the power to dismiss an appeal for non-prosecution, or if the appeal must be decided on merits.

Thayer Overseas Finance Ltd. vs ACIT | ITAT Chennai 2015

Income Tax Appellate Tribunal, “D” BENCH, CHENNAI

Before: SHRI N.R.S. GANESAN & SHRI A. MOHAN ALANKAMONY

For Respondent: Shri N. Madhavan, JCIT

Hearing: 25.05.2015Pronounced: 19.06.2015

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) – 11, dated 20.02.2015 and pertains to assessment year 2010-11.

Shri G. Baskar, the Ld.counsel afor the assessee, submitted that the CIT(Appeals) dismissed the case for non-prosecution.

According to the Ld. counsel, the CIT(Appeals) has no power to dismiss the appeal. According to the Ld. counsel, the CIT(Appeals) is expected to dispose the appeal on merit on the ground the appeal raised before him. The Ld. counsel further submitted that one more opportunity be given to the assessee to present the material facts before the CIT(Appeals) so as to enable him to dispose the appeal on merit.

On the contrary, Shri N. Madhavan, the Ld. Departmental Representative, submitted that inspite of providing sufficient opportunity, the assessee did not appear before the CIT(Appeals).

Therefore, the CIT(Appeals) had no other alternative except to dismiss the appeal.

We have considered the rival submissions on either side and perused the relevant material on record. The CIT(Appeals) by following the judgement of M.P. High Court in Estate of Late Tukojirao Holkar v. CIT (223 ITR 480) and the decision of Delhi Bench of this Tribunal in CIT v. Multiplan (India) Pvt. Ltd. (38 ITD 320), dismissed the appeal for non-prosecution. In the case before the Delhi Bench of this Tribunal in Multiplan (India) Pvt. Ltd. (supra), the case was not admitted because of the defect pointed out by the registry. This Tribunal is of the considered opinion that the judgement of M.P. High Court and the decision of Delhi Bench of this Tribunal are not applicable to the facts of this case. The CIT(Appeals) has not pointed out any defect in the case before him.

Once the appeal is validly pending before him, the CIT(Appeals) is expected to dispose on merit irrespective of the fact that the assessee appeared before him. The CIT(Appeals), being the senior most officer of the Department and well versed in income-tax matters, can dispose the appeal on merit on the basis of the material available on record. Even otherwise, Income-tax Act does not enable the CIT(Appeals) to dismiss the appeal for non- prosecution. Since the CIT(Appeals) has not disposed the appeal on merit, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the CIT(Appeals) on merit.

Accordingly, the order of the CIT(Appeals) is set aside and the entire issue raised by the assessee is remitted back to his file with a direction to decide the issue afresh in accordance with law, after giving reasonable opportunity to the assessee. It is made clear that if the assessee does not cooperate with him after giving a

With the above observation, the appeal of the assessee is allowed for statistical purposes.

Order pronounced on 19th June, 2015 at Chennai.

THAYER OVERSEAS FINANCE LTD.,CHENNAI vs. ACIT, CHENNAI

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