Smt. T. Umadevi, Erode V. ITO, Erode

CO 123/CHNY/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2484 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N V BALAJI
• Assessee Lawyers: SHIVA SRINIVAS
• Keywords: Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , .. ' #$, & '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.2041/MDS/2016 & C.O. NO.123/MDS/2016 (IN I.T.A. NO.2041/MDS/2016) * +* / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 1(1), ERODE. V. SMT. T. UMADEVI, NO.396, NETHAJI ROAD, ERODE 638 001. PAN : AAFPU 7529 P (-./ APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) -. / 0 / APPELLANT BY : SHRI SHIVA SRINIVAS, JCIT 12-. / 0 / RESPONDENT BY : SHRI N.V. BALAJI, ADVOCATE ' / 3& / DATE OF HEARING : 27.10.2016 45+ / 3& / DATE OF PRONOUNCEMENT : 30.11.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 3, COIMB ATORE, DATED 28.03.2016 AND PERTAINS TO ASSESSMENT YEAR 2010-11. 2 I.T.A. NO.2041/MDS/16 C.O. NO.123/MDS/16 2. THERE WAS A DELAY OF 3 DAYS IN FILING THIS APPEA L BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CO NDONATION OF DELAY. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESEN TATIVE AND THE LD.COUNSEL FOR THE ASSESSEE. WE FIND THAT THER E WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULAT ED TIME. THEREFORE, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. THE ONLY ISSUE RAISED BY THE REVENUE IS THAT THE CIT(APPEALS) ADMITTED ADDITIONAL EVIDENCE WITHOUT C ALLING FOR REMAND REPORT. NO GROUND WAS RAISED BY THE REVENUE ON MERITS. 4. SHRI SHIVA SRINIVAS, THE LD. DEPARTMENTAL REPRES ENTATIVE, SUBMITTED THAT THERE WAS A CASH PAYMENT OF ` 12,00,000/- TO M/S S.P. PALANIAPPA MUDALIAR & SONS AND ANOTHER PAYMENT OF ` 15,00,000/- TO M/S S.P.P. SILK SHOW ROOM MADE BY TH E ASSESSEE. THE ASSESSING OFFICER HAS ALSO FOUND THAT THE ASSES SEE HAS MADE A PAYMENT OF ` 21,00,000/- TO SHRI P. BALASUBRAMANIAM. THESE WERE NOT EXPLAINED. ACCORDING TO THE LD. D.R., THE ASSE SSEE OFFERED EXPLANATION BEFORE THE CIT(APPEALS) AND THE CIT(APP EALS) ALLOWED THE CLAIM OF THE ASSESSEE AFTER ADMITTING THE ADDIT IONAL EVIDENCE FILED BY THE ASSESSEE. ON A QUERY FROM THE BENCH, WHAT WAS THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE? THE LD. D.R. CLARIFIED 3 I.T.A. NO.2041/MDS/16 C.O. NO.123/MDS/16 THAT THE ADDITIONAL EVIDENCE IS THE EXPLANATION THA T WAS OFFERED BY THE ASSESSEE BEFORE THE CIT(APPEALS). REFERRING TO THE ORDER OF THE CIT(APPEALS), THE LD. D.R. SUBMITTED THAT THE CIT(A PPEALS) AT PARA 6.5 OBSERVED THAT THESE EVIDENCES WERE AVAILABLE WI TH THE ASSESSING OFFICER. IN FACT, THESE EVIDENCES WERE N OT AVAILABLE BEFORE THE ASSESSING OFFICER. THE LD. D.R. CLARIFI ED THAT THE DETAILS OF PAYMENTS AND RECEIPTS REPRODUCED BY THE CIT(APPE ALS) AT PARA 6.4 OF THE IMPUGNED ORDER WERE VERY MUCH AVAILABLE BEFORE THE ASSESSING OFFICER. THE LD. D.R. FURTHER SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING O FFICER FOR RE- EXAMINATION. 5. ON THE CONTRARY, SHRI N.V. BALAJI, THE LD.COUNSE L FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY ADDITIONAL EVIDENCE BEFORE THE CIT(APPEALS). THEREFORE, IT IS NOT KNOWN HOW THE REVENUE CONTENDS THAT THE ASSESSEE HAS FILED AD DITIONAL EVIDENCES BEFORE THE CIT(APPEALS). THE ASSESSEE HA S OFFERED EXPLANATION WITH REGARD TO CASH CREDIT. REFERRING TO RULE 46A OF THE INCOME-TAX RULES, 1962, THE LD.COUNSEL SUBMITTED TH AT WHEN THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE, EITHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BEFORE THE ASSESSI NG OFFICER, 4 I.T.A. NO.2041/MDS/16 C.O. NO.123/MDS/16 THEN THE CIT(APPEALS) HAS TO NECESSARILY GIVE OPPOR TUNITY TO THE ASSESSING OFFICER TO CONTROVERT THE CONTENTS OF THE DOCUMENT. IN THIS CASE, ADMITTEDLY, NO ORAL EVIDENCE WAS ADDUCED BEFORE THE CIT(APPEALS) AND NO DOCUMENTARY EVIDENCE WAS ALSO A DDUCED. THEREFORE, ARGUING THE CASE BY OFFERING EXPLANATION DOES NOT MEAN PRODUCING ANY EVIDENCE BEFORE THE CIT(APPEALS). TH EREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS FILED ANY ADDI TIONAL EVIDENCE BEFORE THE CIT(APPEALS). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. RULE 46A CLEARLY SAYS THAT WHEN THE ASSESSEE PRODUCES ADDITIONAL EVI DENCE IN THE FORM OF ORAL OR DOCUMENTARY, AN OPPORTUNITY SHALL B E GIVEN TO THE ASSESSING OFFICER TO CONTROVERT THE CONTENTS OF THE ADDITIONAL EVIDENCE. IN THE CASE BEFORE US, IT IS NOBODYS CA SE THAT THE ASSESSEE HAS FILED ANY ADDITIONAL EVIDENCE EITHER I N THE FORM OF ORAL OR DOCUMENT. THE EXPLANATION OF THE ASSESSEE WITH REGARD TO PAYMENT OF CASH CANNOT BE CONSTRUED AS ADDITIONAL E VIDENCE WITHIN THE MEANING OF RULE 46A OF THE INCOME-TAX RULES, 19 62. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY MERIT IN THE CONTENTI ON OF THE LD. DEPARTMENTAL REPRESENTATIVE. 5 I.T.A. NO.2041/MDS/16 C.O. NO.123/MDS/16 7. NO GROUND WAS RAISED BY THE REVENUE IN RESPECT O F THE ADDITION MADE BY THE ASSESSING OFFICER WITH REGARD TO CASH PAYMENT. THEREFORE, WE REFRAIN OURSELVES FROM GOIN G INTO THE MERIT OF ADDITION. 8. THE CROSS-OBJECTION FILED BY THE ASSESSEE IS ONL Y TO SUPPORT THE ORDER OF THE CIT(APPEALS), THEREFORE, IT BECOME S INFRUCTUOUS. 9. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS- OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2016 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 30 TH NOVEMBER, 2016. KRI. / 13#8 98+3 /COPY TO: 1. -. /APPELLANT 2. 12-. /RESPONDENT 3. ' :3 () /CIT(A)-3, COIMBATORE 4. PRINCIPAL CIT-2, COIMBATORE 5. 8; 13 /DR 6. * < /GF.