Sumitra Menon v. The Assistant Commissioner Of Income Tax, Circle Vii, Chennai – 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.06.2009 C O R A M: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAandTHE HONOURABLE MR.JUSTICE B.RAJENDRAN TAX CASE (Appeal) No.347 of 2009 Sumitra Menon .. Appellant(Respondent) vs. The Assistant Commissioner of Income Tax,Circle VII,Chennai – 600 034. .. Respondent/Appellant Tax Case Appeal under Section 260A of the Income Tax Act, 1961against the order of the Income Tax Appellate Tribunal, Madras 'C'Bench, Chennai, dated 19.11.2008, in I.T.A.No.79/MDS/2008 relating tothe assessment year 2004-2005 against the order of the Commissionerof Income Tax (Appeals)-IX 121,Mahatma Gandhi Road, Chennai-34dated.16.10.07 in ITA.No.361/06-07 against the order of the JointCommissionerofIncome-TaxBusinessRange-VII,Chennai-34dated.29.11.06 in PAN/GIR No.AJIPM 4698R. For Appellant : Mr.J.BalachanderJ U D G M E N T (Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA, J.) The assessee has come forward with this appeal challenging theorder of the Tribunal dated 19.11.2008, in I.T.A.No.79/MDS/2008, forthe assessment year 2004-05. 2. The grievance of the appellant is that the Tribunal ought notto have interfered with that part of the order of the C.I.T.(Appeals), in and by which, the assessment order was set aside andthe assessing authority was directed to rehear and re-determine theissue afresh. 3. According to the appellant, without serving proper notice onthe appellant and above all by effecting service on a total stranger,the assessing officer had passed the impugned order of assessment https://hcservices.ecourts.gov.in/hcservices/ dated 29.11.2006 and that the said order was set aside by the C.I.T.(Appeals), for the said irregularity in the service of notice to theappellant, the Tribunal ought not to have interfered with the orderof C.I.T.(Appeals). 4. However forceful the contention of the appellant may be, wedo not find any scope to entertain this appeal, in as much as, wefind that the alleged irregularity in the service of notice aspointed out by the appellant virtually faded into insignificance, inas much as, the appellant was represented by her own Auditor viz.,Mr.S.Thyagarajan, who filed the return on behalf of the appellant. 5. That apart, either in the course of the hearing before theassessing officer or before the C.I.T. Appeals, the appellant neverraised any grievance as regards the appearance made byMr.S.Thyagarajan on her behalf, on the footing that there was noproper service of notice in relation to the assessment proceedingsinitiated originally by the assessing authority viz., the JointCommissioner of Income Tax. 6. In the above stated background, when we examine thecorrectness of the order impugned in this appeal, the following partof the order of the Tribunal in paragraphs 5 & 6 are relevant, whichneeds extraction: "5..... In the facts of the present case, we findthat the ld. Counsel for the assessee did appear beforethe Assessing Officer. The case was represented by him.Therefore, even if there be some irregularity as allegedby the assessee, it could be said to have been waived bythe conduct of the assessee. Therefore, we find that theC.I.T.(Appeals) was not correct in quashing the order onthe ground of service of notice under sec.143(2) of theAct. We restore the order of the Assessing Officer andreverse the order of the C.I.T.(Appeals) on this issue. 6. Adverting to the merits of the case, we find thatthe C.I.T.(Appeals) has not adequately discussed theissue in the impugned order. As such, in the interest ofjustice, we set aside the impugned order and remand thisissue back to the file of the C.I.T.(Appeals) with adirection to decide it de novo in accordance with lawafter providing adequate opportunity to the assessee ofbeing heard." 6. Adverting to the merits of the case, we find thatthe C.I.T.(Appeals) has not adequately discussed theissue in the impugned order. As such, in the interest ofjustice, we set aside the impugned order and remand thisissue back to the file of the C.I.T.(Appeals) with adirection to decide it de novo in accordance with lawafter providing adequate opportunity to the assessee ofbeing heard." 7. The observations made by the Tribunal as regards theappearance and representation by her auditor before the AssessingOfficer was factually true and are not in dispute. That be so, asrightly held by the Tribunal the alleged irregularity was practicallywaived by the appellant which cannot be found fault with, in as much https://hcservices.ecourts.gov.in/hcservices/ as, at no point of time till the final order was passed by theC.I.T. (Appeals), the appellant made any grievance as regards therepresentation and appearance made by Mr.S.Thyagarajan in hiscapacity as auditor, who admittedly filed the returns. Therefore,the ultimate relief granted by the Tribunal in directing the C.I.T.(Appeals) to decide the appeal de novo in accordance with law afterproviding adequate opportunity to the assessee is perfectly in orderand we do not find any question of law in order to entertain thisappeal. We only state that the observations and factual conclusionreached in regard to the appearance made on behalf of the appellantin paragraph 5 which have been extracted in this order are allspecial facts relating to the case of the appellant and any suchconclusion based on those special facts cannot be quoted as aprecedent in any other case. The appeal fails and the same isdismissed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar kkTo1. The Assistant Registrar, Income Tax Appellate Tribunal, Madras 'C' Bench, Chennai.2. The Commissioner of Income-Tax(Appeals-IX), 121,Mahatma Gandhi Road,Chennai-34.3. The Joint Commissioner of Income-Tax, Business Range VII, Chennai-34. 4. The Assistant Commissioner of Income Tax, Circle VII, Chennai – 600 034. + 1 cc to Mr.J.Balachander,Advocate,SR.23501 TAX CASE (Appeal) No.347 of 2009BV(CO)EM/23.6