D.Malarvannan, CHENNAI V. ACIT, CHENNAI

CO 129/CHNY/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5468 (ITAT-CHENNAI)
• Duration Of Justice: 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P B SEKARAN
• Assessee Lawyers: V S JAYAKUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENNAI (BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER) ..... I.T.A. NO. 1146 / MDS/2010 ASSESSMENT YEAR : 2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE IV, CHENNAI - 600 034. (APPELLANT) V. SHRI D. MALARVANNAN, SUNDARA BHAVANAM, 7/1, NGO COLONY III STREET, VADAPALANI, CHENNAI - 600 026. PAN : AAIPM5380K (RESPONDENT) C.O. NO. 129 / MDS/2010 (IN I.T.A. NO. 1146/MDS/2010) ASSESSMENT YEAR : 2007-08 SHRI D. MALARVANNAN, SUNDARA BHAVANAM, 7/1, NGO COLONY III STREET, VADAPALANI, CHENNAI - 600 026. (CROSS OBJECTOR) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE IV, CHENNAI - 600 034. (RESPONDENT) REVENUE BY : SHRI P.B. SEKARAN ASSESSEE BY : SHRI V.S. JAYAKUMAR O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL OF THE REVENUE, THE MAIN GRIEVANCE TAKEN BY IT IS THAT THE CIT(APPEALS) ACCEPTED THE EVIDENCE PRODUCE D BY THE ASSESSEE BEFORE HIM WITHOUT CONSIDERING RULE 46A(3) OF THE INCOME- TAX RULES, 1962. I.T.A. NO. 1146/MDS/10 C.O. NO. 129/MDS/10 2 2. SHORT FACTS APROPOS ARE THAT THE CIT(APPEALS) DE LETED DISALLOWANCE OF ` 3,00,000/- MADE BY THE A.O. RELATING TO VARIOUS EXPENSES. THE A.O. HAD MADE THE DISALLOWANCE SINCE THE ASSESSEE DID NOT FURNISH THE BOOKS AND OTHER EVIDENCE IN SUP PORT OF HIS CLAIM. HOWEVER, THE CIT(APPEALS) WAS OF THE OPINION THAT T HE A.O. HAD ONLY GIVEN TWO DATES OF HEARING TO THE ASSESSEE AND WAS OF THE OPINION THAT THE ASSESSEE HAD SHOWN REASONABLE PROFIT. SIM ILARLY, THE CIT(APPEALS) HAD ALSO RESTRICTED THE DISALLOWANCE M ADE BY THE A.O. ON ACCOUNT OF DEVELOPMENT CHARGES CLAIMED BY THE AS SESSEE AGAINST SALE PROCEEDS OF A LAND RETURNED BY THE ASSESSEE UN DER THE HEAD CAPITAL GAINS. THIS RELIEF WAS GIVEN TO THE ASSE SSEE BASED ON THE ARGUMENTS OF THE ASSESSEE THAT THE EXPENDITURE WAS TOWARDS LABOUR AND COST OF MATERIALS PURCHASED FOR WHICH VOUCHERS AND OTHER EVIDENCE WERE AVAILABLE. 3. WE FIND FROM THE ORDER OF THE CIT(APPEALS) THAT THE CIT(APPEALS) HAD CONSIDERED A NUMBER OF EVIDENCE PR ODUCED BY THE ASSESSEE WHILE GIVING RELIEF TO THE ASSESSEE. THE LEARNED A.R., DURING THE COURSE OF HEARING, FAIRLY ADMITTED THAT FRESH EVIDENCE WAS CONSIDERED BY THE CIT(APPEALS) AND THEREFORE, IT WO ULD BE ONLY IN THE INTEREST OF JUSTICE, THE MATTER IS SET ASIDE TO A.O . FOR CONSIDERATION AFRESH. I.T.A. NO. 1146/MDS/10 C.O. NO. 129/MDS/10 3 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. AS ADMITTED BY THE LEARNED A.R. AND AS NOTED BY US, FRESH EVIDENCE WAS PRODUCED BEFORE THE LD. CIT(A) AND WAS CONSIDER ED FOR GIVING RELIEF TO THE ASSESSEE. THEREFORE, WE ARE OF THE O PINION THAT THE MATTER REQUIRES A REVISIT BY THE ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(APPEALS) AND REMIT ALL T HE ISSUES BACK TO THE FILE OF THE A.O. FOR FRESH DECISION AFTER CONSI DERING THE EVIDENCE SUBMITTED BY THE ASSESSEE IN THIS REGARD. A.O. IS TO MAKE A DE NOVO ASSESSMENT BASED ON THE EVIDENCE PRODUCED BY THE AS SESSEE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. 6. THE CROSS OBJECTION FILED BY THE ASSESSEE WAS DE LAYED BY 78 DAYS. WE FIND THAT THE ASSESSEE HAS FILED A CONDON ATION PETITION IN THIS REGARD. THE REASONS CITED ARE REASONABLE AND THEREFORE, THE DELAY IS CONDONED. 7. IN THE CROSS OBJECTION, ASSESSEE IS AGGRIEVED RE GARDING RESTRICTION OF RELIEF TO 1/3 RD OF THE TOTAL AMOUNT OF ` 19,81,255/-. 8. IN THE REVENUES APPEAL WE HAVE REMITTED ALL THE ISSUES BACK TO THE FILE OF THE A.O. FOR FRESH CONSIDERATION DO NOV O BASED ON THE EVIDENCE SUBMITTED BY THE ASSESSEE. SINCE THE A.O. IS TO CONSIDER I.T.A. NO. 1146/MDS/10 C.O. NO. 129/MDS/10 4 THE ISSUE DE NOVO, CROSS OBJECTION FILED BY THE ASS ESSEE BECOMES INFRUCTUOUS. 9. IN THE RESULT, THE CROSS OBJECTION IS DISMISSED AS INFRUCTUOUS. 10. TO SUMMARISE THE RESULT, THE APPEAL OF THE REVE NUE IS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FI LED BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON THE SECOND DAY OF DECEMBER, 2010. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. G EORGE) JUDICIAL MEMBER ACCOUNTANT ME MBER CHENNAI, DATED THE 2 ND DECEMBER, 2010. KRI. COPY TO: (1) ASSESSEE (2) ASSESSING OFFICER (3) CIT(A)-VIII, CHENNAI (4) CIT-VI, CHENNAI (5) D.R. (6) GUARD FILE