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2015 (7) TMI 767 - ITAT CHENNAI

2015 (7) TMI 767 - ITAT CHENNAI - TMI - Dismissal of appeal for non-prosecution - whether the assessee cannot be allowed to suffer for the negligence of his counsel? - Held that:- As decided in Rafiq and another Versus Munshilal and another [1981 (4) TMI 255 - SUPREME COURT] innocent party should not suffer for the inaction, deliberate omission, or mis-demeanour of his counsel or when his chosen advocate defaulted. CIT(Appeals) has to dispose the appeals on merit on the basis of the material ava .....

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to the file of the assessing officers. The assessing officer shall reconsider the issue afresh in the light of the material that may be filed by the assessees and thereafter decide the same in accordance with law after giving reasonable opportunity to the assessee. - Decided in favour of assessee for statistical purposes. - ITA Nos.539 & 540/Mds/2015,ITA Nos.550, 551 & 552/Mds/2015 - Dated:- 17-7-2015 - Shri N.R.S. Ganesan, J. For the Petitioner : Shri V.D. Gopal, Advocate For the Respondent : .....

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e assessees has not appeared before him. The CIT(Appeals) has also found that the assessees have not filed any material before him. According to the Ld. counsel, when an appeal was filed before the CIT(Appeals), he is expected to dispose of the same on merit irrespective of the fact whether the assessee or his representative appeared before him or not. 3. According to the Ld. counsel, merely because the representative of the assessee has not appeared before the CIT(Appeals), the assessee cannot .....

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for the assessee to appear before the CIT(Appeals), the assessee cannot be penalized. The Madhya Pradesh High Court found that the appeal cannot be dismissed for default. According to the Ld. counsel, the assessee cannot be made to suffer for the negligence of his counsel. The Madhya Pradesh High Court, according to the Ld. counsel, placed its reliance on the judgment of the Apex Court in Rafiq v. Munshilal (1981) AIR 1981 SC 1400. 4. On the contrary, Sh. P. Radhakrishnan, the Ld. Departmental .....

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eared before him. Therefore, placing reliance on the decision of Delhi Bench of this Tribunal in CIT v. Multiplan (India) Pvt. Ltd. (38 ITD 320) and other judgments found that the assessees are not interested in prosecuting their appeals. The CIT(Appeals) has also found that the assessees have not filed any material before him so as to adjudicate the matter on merit. The fact remains that the CIT(Appeals) is a statutory authority and judicial power is conferred on him under the provisions of Inc .....

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eme of the Income-tax Act, has to call for the material filed before the Assessing Officer and dispose of the appeals on merit. 6. The Delhi Bench of this Tribunal in the case of Multiplan (India) Pvt. Ltd. (supra) treated the appeal as unadmitted since there was defect. In this case, the CIT(Appeals) has not treated the appeals as unadmitted, neither any defect was pointed out by the CIT(Appeals) nor any defect memo was issued to the assessees. Therefore, at any stretch of imagination, the CIT( .....

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Otherwise, the power conferred on CIT(Appeals) to enhance the assessment would be meaningless. This Tribunal is of the considered opinion that the CIT(Appeals) has no power/authority to dismiss the appeal for non-prosecution. 7. The Income-tax Act proceeding is a peculiar one to assess the total income of the assessee and levy tax thereon. It cannot be equated with other proceedings before civil / criminal courts. Under the provisions of Income-tax Act, the assessee is expected to file return o .....

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igence of his counsel. The Madhya Pradesh High Court in fact extracted the observation of the Apex Court in Rafiq v. Munshilal (supra) at pages 331 and 332 of the ITR, which is reproduced hereunder:- "The disturbing feature of the case is that under our present adversary legal system, where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest o .....

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er to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A. K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our b .....

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