Thayer Overseas Finance Ltd., Chennai vs Assessee

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.

2 I.T.A. No.666/Mds/2015

2. 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.

3. 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.

4. 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 3 I.T.A. No.666/Mds/2015

M.P. High Court, the reference was dismissed. 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 4 I.T.A. No.666/Mds/2015

reasonable opportunity, it is open to the CIT(Appeals) to dispose of

the appeal on merit on the basis of the material available on record.

5. With the above observation, the appeal of the assessee is

allowed for statistical purposes.

Order pronounced on 19th June, 2015 at Chennai.

sd/- sd/- (A.Mohan Alankamony) (N.R.S. Ganesan) (ए. मोहन अलंकामणी) (एन.आर.एस. गणेशन) लेखा सद य/Accountant Member या यक सद य/Judicial Member

चे नई/Chennai, th 5दनांक/Dated, the 19 June, 2015.

Kri.

आदे श क/ - त6ल7प अ8े7षत/Copy to: 1. अपीलाथ,/Appellant 2. -.यथ,/Respondent

3. आयकर आयु9त (अपील)/CIT(A)-11, Chennai-34

4. आयकर आय9 ु त/CIT, Chennai-3, Chennai-34

5. 7वभागीय - त न ध/DR

6. गाड( फाईल/GF.