Income Tax Appellate Tribunal - Chennai
Tamilnadu Alloy Foundry Co. Ltd., Hosur vs Acit, Chennai on 14 February, 2017
आयकर अपील य अ धकरण, 'डी' यायपीठ, चे नई
IN THE INCOME TAX APPELLATE TRIBUNAL
' D' BENCH : CHENNAI
ी एन.आर.एस. गणेशन, या यक सद य एवं
ी अ ाहम पी. जॉज%, लेखा सद य के सम' ।
[BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND
SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER]
आयकर अपील सं./I.T.A.No.3054/Mds/2016
नधा रण वष /Assessment year : 2011-2012.
Tamilnadu Alloy Foundry Co. Ltd, Vs. The Assistant Commissioner of
C/o. M/s. M.K. Rao & Co, Income Tax,
A 41/12, TNHB Bagalur Road, Corporate Circle 3(1)
Hosur 635 109. Chennai,
[PAN AAACT 7981N ]
(अपीलाथ*/Appellant) (+,यथ*/Respondent)
अपीलाथ क ओर से/ Appellant by : Shri. T. Banusekar, C.A.
यथ क ओर से /Respondent by : Shri. R.Durai Pandian, JCIT.
सन
ु वाई क तार ख/Date of Hearing : 08-2-2017
घोषणा क तार ख /Date of : 14-2-2017
Pronouncement
आदे श / O R D E R
PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER
In this appeal assessee assails an order dated 21.03.2016 of ld. Commissioner of Income Tax (Appeals)-11, Chennai for a reason that the appeal was disposed of by the ld. Commissioner of Income Tax (Appeals) ex-parte.
:- 2 -: ITA No.3054/Mds/2016
2. The appeal has been filed by the assessee with a delay of 150 days. Ld. Authorised Representative submitted that assessee was a sick company and closed since 1983. As per ld. Authorised Representative there were no workers or administrative staff to monitor the communication at the registered office. Ld. Authorised Representative submitted that two of its directors had shifted their base to Kerala and other two directors were constantly travelling. Contention of the ld. Authorised Representative was that order of the ld. Commissioner of Income Tax (Appeals) was served on one Shri. Krishna Rao, erstwhile of the director company. As per ld. Authorised Representative said Shri. Krishna Rao was not available in Tamil Nadu and hence assessee became aware of the order of the ld. Commissioner of Income Tax (Appeals) only by first week of October, 2016. As per ld. Authorised Representative appeal was filed without any further delay.
3. Ld. Departmental Representative did not raise any serious objection on the condonation sought by the assessee. Accordingly, considering the facts brought out by the ld. Authorised Representative and also since ld. Departmental Representative had not objected to the condonation petition, we condone the delay and admit the appeal.
4. Main grounds raised by the assessee is that ld. Commissioner of Income Tax (Appeals) had disposed of its appeal ex-parte. Ld. :- 3 -: ITA No.3054/Mds/2016 Authorised Representative submitted that assessee had by its letter dated 15th March, 2016 addressed to ld. Commissioner of Income Tax (Appeals) intimated its intention for filing a declaration under Direct Tax Dispute Resolution Scheme, 2016. As per ld. Authorised Representative by virtue of Circular No.33 of 2016, dated 12th September, 2016 of Central Board of Direct Taxes, once the assessee had filed a declaration or had intimated Commissioner of Income Tax (Appeals) its intention to make a declaration under Direct Tax Dispute Resolution Scheme, 2016, ld. Commissioner of Income Tax (Appeals) was bound to keep the appeal pending.
5. Per contra, ld. Departmental Representative supported the orders of the lower authorities and submitted that ld. Commissioner of Income Tax (Appeals) had decided the appeal on merits.
6. We have considered the rival contentions and perused the orders of the authorities below. It is not disputed that assessee had filed a letter before ld. Commissioner of Income Tax (Appeals)-11, dated 15th March, 2016 which reads as under:-
15th March, 2016 The Commissioner of Income Tax (Appeals)-11, Chennai.
:- 4 -: ITA No.3054/Mds/2016
Sir,
Re: Tamil nadu Alloy Foundry Co. Ltd.
ITA No.: 207/2014 - 15 Assessment Year:
2011 - 12
In connection with the above case, the undersigned is instructed that the appellant is contemplating filing a declaration under the Direct Tax Dispute Resolution Scheme, 2016 announced in the Finance Bill 2016. Accordingly it is most humbly requested that this respected authority may be pleased to not take up the hearing of the above appeal in the interregnum and adjourn the case.
Yours sincerely, T. Banusekar Authorised Representative.
Ld. Commissioner of Income Tax (Appeals) had passed his order dated 21.03.2016 after receipt of the above letter. In its circular No.33 of 2016, CBDT had clarified as under:-
''Question No. 2 : In a case where the appellant has filed a declaration under the Scheme or has intimated the CIT(Appeals) his intention to file declaration under the Scheme, whether the CIT(Appeals) will dispose-off the appeal?
Answer: The CIT(Appeals) have been instructed vide letter F.No.279 /Misc./ M-30/2016 dated 30.3.2016 that appeals where the appellants have expressed their intention to avail the Scheme should be kept pending. Further, vide letter F.No.279/Misc./M- 74/2016-ITJ dated 19.07.2016, the designated authority have been instructed to obtain an endorsement from CIT(Appeals) concerned that the appeal for which declaration has been filed was pending on 29.02.2016 and has not yet been disposed. Therefore, in a case where the declaration has been made under the Scheme or an intention to avail the Scheme has been made by the appellant, the Commissioner of Income Tax :- 5 -: ITA No.3054/Mds/2016 (Appeals) shall not dispose the pending the appeal''.
It is clear from the above that once intention to avail the scheme was made known by the assessee, ld. Commissioner of Income Tax (Appeals) had to keep the appeal pending. Be that as it may, we find that the appeal was disposed of by ld. Commissioner of Income Tax (Appeals)ex-parte, though on merits. Considering the facts and circumstances, we are of the opinion that assessee can be given one more opportunity for making a proper representation before ld.
Commissioner of Income Tax (Appeals). We therefore set aside the order of ld. Commissioner of Income Tax (Appeals) and remit the appeal back to him for consideration afresh in accordance with law.
7. In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced on Tuesday, the 14th day of February, 2017, at Chennai.
Sd/- Sd/-
(एन.आर.एस. गणेशन)) (अ ाहम पी. जॉज%)
(N.R.S. GANESAN) (ABRAHAM P. GEORGE)
या यक सद य/JUDICIAL MEMBER लेखा सद य/ACCOUNTANT MEMBER
चे$नई/Chennai
%दनांक/Dated:14th February, 2017
KV
आदे श क त(ल)प अ*े)षत/Copy to:
1. अपीलाथ /Appellant 3. आयकर आयु+त (अपील)/CIT(A) 5. )वभागीय त न/ध/DR
2. यथ /Respondent 4. आयकर आय+
ु त/CIT 6. गाड फाईल/GF