Akshay Communications Pvt Ltd., CHENNAI V. DCIT, CHENNAI

CO 151/CHNY/2011

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8317 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 10-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K RAVI
• Keywords: Income from undisclosed sources; Additional evidence; Question of law; Block assessment; Condonation of delay

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER I.T(SS).A. NO. 150/MDS/2007 BLOCK ASSESSMENT PERIOD : 1997-98 TO 2002-03 AND PA RT OF 2003-04 & C.O. NO. 151/MDS/2011 [IN I.T (SS) .A. NO. 150 /MDS/2007 ] THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(1), 46, M.G. ROAD, CHENNAI 34. VS. M/S. AKSHAY COMMUNICATION (P) LTD., 5E, MOOKAMBIKA COMPLEX, V FLOOR, 4 LADY DESIKA ROAD, MYLAPORE, CHENNAI 600 004. [PAN: AA ACA7628R ] (APPELLANT) (RESPONDENT/ CROSS OBJECTOR) I.T(SS).A. NO. 151/MDS/2007 BLOCK ASSESSMENT PERIOD : 1997-98 TO 2002-03 AND PA RT OF 2003-04 & C.O. NO.152/MDS/2011 [IN I.T(SS).A. NO.151 /MDS/2007] THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(1), 46, M.G. ROAD, CHENNAI 34 VS. M/S. AKSHAY MERCANTILE (P) LTD., MOOKAMBIKA COMPLEX, V FLOOR, 4 LADY DESIKA ROAD, MYLAPORE, CHENNAI 600 004. [PAN:AAACA6248H] (APPELLANT) (RESPONDENT/ CROSS OBJECTOR) I.T(SS).A. NO. 152/MDS/2007 BLOCK ASSESSMENT PERIOD : 1997-98 TO 2002-03 AND PA RT OF 2003-04 & C.O. NO. 153/MDS/2011 [IN I.T (SS) .A. NO. 152/MDS/2007 ] THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(1), 46, M.G. ROAD, CHENNAI 34 VS. M/S. AASHANA INVESTMENTS PVT. LTD., MOOKAMBIKA COMPLEX, V FLOOR, 4 LADY DESIKA ROAD, MYLAPORE, CHENNAI 600 004. [PAN:AAACA6251G] (APPELLANT) (RESPONDENT/ CROSS OBJECTOR) APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT RESPONDENT BY : SHRI K. RAVI, ADVOCATE DATE OF HEARING : 14.02.2013 I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 2 DATE OF PRONOUNCEMENT : 25.02.2013 ORDER PER S.S. GODARA, JUDICIAL MEMBER THESE APPEALS BY THE REVENUE AND THE CROSS OBJECTI ONS AT THE BEHEST OF THE ASSESSEE, ARISE FROM DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, CHENNAI ALL DATED 14.08.20 07, IN APPEAL NOS. CIT(A)/CHE/145/05-06, CIT(A)/CHE/147/05-06 AND CIT( A)/CHE/148/05-06 RESPECTIVELY; FOR THE BLOCK ASSESSMENT PERIOD 1997- 98 TO 2002-03 AND UPTO 27.03.2003 IN PROCEEDINGS UNDER SECTION 158BD R.W.S . 158BC OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. SINCE IDENTICAL ISSUES ARE RAISED IN ALL 3 APPEALS AND COS, WE TAKE UP I.T.(SS)A. NO. 150/MDS/ 2007 AND C.O. NO. 151/MDS/2011 AS THE LEAD CASE. 2. FEW FACTS OF THE CASE AS NOTICED ARE THAT THE A SSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF FILM FINANCING. ON 27.03 .2003, THE DEPARTMENT HAD CONDUCTED A SEARCH WITHIN THE MEANING OF SECT ION 132(1) OF THE ACT IN CASE OF ITS MANAGING DIRECTOR SHRI RAKESH SARIN. ON 28.08.2003, THE SEARCH WAS CONCLUDED. 3. IN THE COURSE OF ABOVE SAID SEARCH, THE DEPAR TMENT ALLEGED TO HAVE COME ACROSS ASSESSEES BOOKS OF ACCOUNT FROM 01.04. 2000 WITH TALLY PACKAGE OF THE COMPUTER SEIZED ALONG WITH PRONOTES CONTAINING LARGE SCALE ADVANCES WHICH PROMPTED THE ASSESSING OFFICER TO IS SUE NOTICE TO THE ASSESSEE DATED 27.11.2003 UNDER SECTION 158BD OF TH E ACT. IN RESPONSE, I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 3 THE ASSESSEE FILED ITS RETURN FOR THE BLOCK PERIOD ON 14.09.2004 DECLARING LOSS OF ` .5,950/-. 4. THEREAFTER, IN THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER CONSIDERED ABOVE SAID PRONOTES SHOWING ASSE SSEE AS LENDER AND RETURNED A FINDING THAT IT HAD MAINTAINED THE DETAI LS AFTER 01.04.2001 ONLY AND HAD FAILED TO EXPLAIN THE SOURCE. HENCE, VIDE A SSESSMENT ORDER DATED 23.12.2005, THE ASSESSING OFFICER TREATED THE ABOVE SAID AMOUNT OF ` .5.00 LAKHS ADVANCED BY THE ASSESSEE TO M/S. SIVASAKTHI M OVIE MAKERS AS UNDISCLOSED INVESTMENT. FURTHER, AS IT IS REVEALED FROM THE ASSESSMENT OR DER, THE ASSESSING OFFICER HAD ALSO MADE ADDITIONS OF SUNDRY CREDIT AS UNDISCLOSED INCOME, SUSPENSE ACCOUNT AMOUNT AS UNACCOUNTED INCOME, UNDI SCLOSED INCOME IN THE SHAPE OF ADVANCES MADE BY THE ASSESSEE TO THE E XTENT OF ` . 2.00 LAKHS, ` .3.50 LAKHS, AND ` .2.50 LAKHS RESPECTIVELY; FOR WANT OF SATISFACTORY EXPLANATION. 5. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL. IN IT S GROUNDS RAISED, APART FROM CHALLENGING THE ADDITION ABOVE SAID ON MERITS, IT ALSO QUESTIONED THE LEGALITY OF THE 158BD PROCEEDINGS. AS WE FIND FROM THE ORDER UNDER CHALLENGE PASSED BY THE CIT(A), HE REJECTED THE CHA LLENGE TO THE LEGALITY. AT THE SAME TIME, ON MERITS, THE ASSESSEES APPEAL STA NDS ACCEPTED QUA THE ADDITION MADE REGARDING PROMOTES AND CIT(A)S FINDI NG READS AS FOLLOWS: 5.1 DURING THE COURSE OF HEARING BEFORE ME, THE A PPELLANT'S REPRESENTATIVE MADE I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 4 THE FOLLOWING SUBMISSIONS: THE LEDGER COPY .FROM ASSESSEE COMPANY'S BOOKS OF A CCOUNTS AND RELEVANT BANK STATEMENTS OF STATE BANK OF INDORE ARE SELF EXPLANA TORY ABOUT THE GENUINE OF TRANSACTIONS, NO ADDITION CAN BE MADE THEREFORE AS THEY STANDS FULLY ACCOUNTED. 5.2 I HAVE EXAMINED THE FACTS OF THE MATTER. IN TH E PAPER BOOKS SUBMITTED BEFORE ME, THE APPELLANT HAD SUBMITTED COPIES OF ALL PRONO TES, DRAFT, PRONOTES AND RELEVANT BANK STATEMENT AND DOCUMENTS. ON CAREFUL PERUSAL OF THE SEIZED PRONOTES, IT IS FOUND THAT THE PRO NOTES WHICH WERE EXECUTED WERE TAKEN I N RESPECT OF ADVANCES GIVEN FROM THE REGULAR BANK ALES OF THE ASSESSEE. THE DRAFT PR O NOTES WHICH HAD NOT BEEN EXECUTED, DO NOT REPRESENT ANY INVESTMENT. THERE AR E MANY PRO NOTES WHICH ARE TAKEN AS SECURITY AT THE TIME OF RENEWAL OF ADVANCES MADE EARLIER. IT IS PROVED BEYOND DOUBT FROM THE DOCUMENTARY EVIDENCE THAT ALL EXECUTED PRO NOTES ARE RELATED TO THE ADVANCES MADE OUT OF REGULAR BANK ACCOUNTS. THE DRAFT PRO NO TES WHICH ARE NOT EXECUTED COULD NOT BE TREATED AS RELIABLE EVIDENCE. IN THE BUSINES S OF FILM FINANCING, PAPER WORK IS DONE AFTER NEGOTIATION WITH THE PRODUCERS AND DRAFT AGREEMENTS, PRO NOTES, LAB SLIPS ETC. ARE PREPARED BY FINANCIER'S OFFICE. MORE OFTEN THAN NOT, THE NEGOTIATIONS DO NOT RESULT IN STRIKING THE DEAL. SOME TIME PRODUCERS GI VE SIGNED PRO NOTES AND LAB SLIPS IN ADVANCE DURING NEGOTIATIONS ~ AND WAIT FOR RELEASE OF FUND FROM THE FILM FINANCIER. IF THE DEAL IS NOT STRUCK, THESE SIGNED PRO NOTES ARE NOT EXECUTED. IN THE CASE OF RAKESH SARIN LEARNED CIT(A)-X, CHENNAI HAS OVERRULED THE A SSESSING OFFICER'S FINDING ON THE ISSUE AND HAVE DELETED THE ADDITION ON ACCOUNT OF P RO NOTES SEIZED, IN THE APPELLATE ORDER PASSED ON 04.01.07 IN APPEAL AGAINST BLOCK AS SESSMENT ORDER. IN VIEW OF THE FACTS OF THE CASE, IT IS CLEAR THAT ALL VALID PRO N OTES REPRESENT ACCOUNTED INVESTMENT. THERE IS NO JUSTIFICATION FOR MAKING ANY ADDITION O N THE BASIS OF SEIZED PRO NOTES AND DRAFT PRO NOTES WHICH ARE NOT EXECUTED. IN VIEW OF THE FACTS OF THE CASE AND IN LAW, IT IS HELD THAT ADDITION OF ` .5,00,000/- IS INVALID HENCE THE SAME IS DELETED. T HIS GROUND OF APPEAL IS ALLOWED. SIMILARLY, THE ADDITION REGARDING SUNDRY CREDITORS (SUPRA) ALSO STANDS DELETED AS UNDER: 6.1 DURING THE COURSE OF HEARING BEFORE ME, THE AP PELLANTS REPRESENTATIVE MADE THE FOLLOWING SUBMISSIONS: THE APPELLANT COMPANY HAS ALREADY FILED CONFIRMATIO N LETTER FROM THE CREDITOR WHICH THE LEARNED ASSESSING OFFICER HAS NOT ACCEPTED ON S OME FLIMSY REASONS, WE ARE ALSO ENCLOSING HEREWITH THE COPY OF CONFIRMATION LETTER ALONG WITH THE EXTRACT ACCOUNT FROM BOOKS AND RELEVANT BANK STATEMENTS. 6.2 I HAVE EXAMINED THE FACTS OF THE CASE. ON EXAM INATION IT IS FOUND THAT THE IMPUGNED ADDITION IS NOT BASED ON ANY SEIZED MATERI AL. THE SUNDRY CREDIT APPEARING IN THE REGULAR BOOKS OF ACCOUNTS HAS CAUSED THIS AD DITION. NO EVIDENCE IS FOUND DURING THE COURSE OF SEARCH TO DOUBT THE GENUINENESS OF SU NDRY CREDIT. HENCE IT IS BEYOND THE JURISDICTION OF BLOCK ASSESSMENT PROCEEDINGS. IN VI EW OF THE ABOVE, IT IS HELD THAT ADDITION OF RS. 2,00,000/- ON ACCOUNT OF SUNDRY CRE DIT MADE IN THE BLOCK ASSESSMENT ORDER IS INVALID HENCE THE SAME IS DELETED. THIS GR OUND OF APPEAL IS ALLOWED. IN THE SAME MANNER, THE CIT(A) HAS ALSO GRANTED REL IEF TO THE ASSESSEE I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 5 CHALLENGING ADDITION OF ` .3.5 LAKHS RELATING TO SUSPENSE ACCOUNT AND ` .2.5 LAKHS (SUPRA) BY HOLDING THAT THE ASSESSEE HAD DULY EXPLAINED ALL DETAILS IN APPELLATE PROCEEDINGS. IN THIS BACKDROP OF THE FACTS, THE REVENUE HAS PRE FERRED THE INSTANT APPEAL CHALLENGING CIT(A)S ORDER DELETING THE ADDI TIONS MADE BY THE ASSESSING OFFICER ON MERITS. WE FIND THAT THE ASSES SEE HAS FILED ITS CROSS OBJECTIONS IMPUGNING THE CORRECTNESS OF THE 158BD N OTICE WHICH ARE TIME BARRED BY 1370 DAYS. WE NOTICE THAT THE ASSESSEE HA S ALSO FILED CONDONATION PETITION FOR CONDONING DELAY IN THE SHA PE OF AFFIDAVIT OF ITS MANAGING DIRECTOR STATING THEREIN TO HAVE RECEIVED COPY OF THE APPEAL FILED BY THE DEPARTMENT ON 06.12.2007. WE ALSO FIND FROM THE PAPER BOOK THAT THE ASSESSEE HAS FILED AN ADDITIONAL AFFIDAVIT DATED 10 .09.2012. IN SUPPORT, THE ASSESSEE SOLEMNLY AFFIRMS THAT SINCE IT HAD ENGAGED ANOTHER COUNSEL, TO APPEAR IN THE TRIBUNAL WHO DID NOT ADVISE FILING OF CROSS OBJECTIONS AND LATER ON, WHEN IT CHANGED THE COUNSEL IN OCTOBER, 2011, T HEN ONLY THE NEW COUNSEL FILED THE CROSS OBJECTIONS. IN VIEW THEREOF , THE ASSESSEE PRAYS FOR CONDONATION OF DELAY IN FILING CROSS OBJECTIONS. 6. IN THE COURSE OF HEARING, THE AR REITERATES THE CONTENTS OF THE AFFIDAVIT AND SUBMITS THAT THE DELAY IS ONLY A TECHNICAL ASPE CT, THEREFORE, THE SAME MAY NOT BE ALLOWED TO AFFECT THE SUBSTANTIAL JUSTIC E. IN SUPPORT, HE ALSO CITES CASE LAW OF COLLECTOR, LAND ACQUISITION V. MST. KAT IJI [1987] 167 ITR 471 AND I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 6 [1979] SCC 176 (MADRAS PORT TRUST VS. HIMANSHU ENTE RPRISES). 7. OPPOSING THIS, THE DR REPRESENTING THE REVENUE VEHEMENTLY ARGUED THAT THE PETITION IS HOPELESSLY TIME BARRED AND CHA NGE OF COUNSEL IS NOT A GROUND TO CONDONE THE DELAY. 8. WE HAVE HEARD BOTH PARTIES AT LENGTH QUA THE IS SUE OF CONDONATION OF DELAY. IT IS TRITE PREPOSITION OF THE LAW THAT THE ISSUE OF DELAY IS A MIXED QUESTION OF LAW AND FACT, WHICH HAS TO BE DECIDED I N VIEW OF THE FACTS OF EACH CASE. AS ALREADY STATED, THE CROSS OBJECTIONS OF TH E ASSESSEE ARE BARRED BY 1370 DAYS. THE ONLY REASON CITED BY THE ASSESSEE IS THAT ITS EARLIER COUNSEL DID NOT TENDER PROPER LEGAL ADVICE AND WHEN IT HAD CHANGED THE COUNSEL THEN ONLY IT WAS TOLD ABOUT THE REMEDY OF CROSS OBJECTIO NS. THIS IN OUR OPINION IS NOT A VALID AND SUFFICIENT REASON TO CONDONE THE HU GE DELAY OF ABOUT FOUR YEARS. WE MAKE IT CLEAR EVEN IN THE GROUNDS RAISED EVEN BEFORE CIT(A), THE ASSESSEE HAD POSED CHALLENGE TO THE LEGALITY OF THE PROCEEDINGS IN QUESTION. THEREFORE, IT CAN BE VERY WELL PRESUMED THAT IT WAS AWARE OF ITS REMEDY OF RAISING THE CROSS OBJECTIONS THE MOMENT IT HAD RECE IVED COPY OF THE APPEAL ON 06.12.2007. SO FAR AS THE CASE LAW CITED BY THE ASSESSEE IS CONCERNED (SUPRA), WE NOTICE THAT IN THE FIRST CASE, THE DELA Y IS ONLY OF 4 DAYS AND IN THE 2 ND CASE, THE HONBLE APEX COURT OBSERVED THAT THE SUB STANTIAL JUSTICE IS A VITAL FACTOR IN CONDONING THE DELAY. WE HAVE GONE T HROUGH THE ABOVE OBSERVATIONS OF THE HONBLE SUPREME COURT. HOWEVER, FOR THE REASONS STATED I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 7 ABOVE, THE FACTS OF THE INSTANT CASE ARE ALTOGETHER DIFFERENT VIZ-A-VIS THOSE INVOLVED BEFORE THEIR LORDSHIPS. HENCE, WE DO NOT F IND ANY REASON TO CONDONE THE DELAY. ACCORDINGLY, THE CROSS OBJECTION S SUBMITTED BY THE ASSESSEE ARE REJECTED BEING TIME BARRED. 9. NOW, WE COME TO THE ISSUE ON MERITS. FROM THE O RDER SHEET, IT TRANSPIRES THAT ON 12.02.2012, THE REVENUE HAD ARGU ED THAT THE CIT(A) HAD WRONGLY ADMITTED ADDITIONAL EVIDENCE FILED BY THE A SSESSEE AND DELETED THE ADDITIONS WITHOUT ASSOCIATING THE ASSESSING OFFICER . TO BUTTRESS THE SAID CONTENTION, THE REVENUE HAD INVITED OUT ATTENTION T O GROUND NO. 5.1 AS WELL RELEVANT FINDINGS CONTAINED IN THE ORDER OF THE CIT (A). AT THIS STAGE, WE DEEM IT APPROPRIATE TO REPRODUCE OUR ORDER DATED 12.02.2 013 READING AS UNDER: I.T.(SS) A. NOS. 150, 151 AND 152/MDS/2007 & C.O. NOS. 15 1, 152 AND 153/MDS/2011 33 12.02.2013 HEARD ARGUMENTS OF BOTH PARTIES QUA CROSS OBJECTION S FILED BY THE ASSESSEE IMPUGNING THE NOTICES ISSUED BY THE ASSESSING OFFIC ER UNDER SECTION 158BD OF THE ACT. ON MERITS, THE REVENUE INVITES OUR ATTENTION TO PAR A NO. 5.2 OF CIT(A)S ORDER IN I.T.(SS) A. NO. 150/MDS/2007 AND CONTENDS THAT THE ASSESSEE HAD LED ADDITIONAL EVIDENCES IN THE LOWER APPELLATE PRO CEEDINGS WHICH HAVE BEEN ACCEPTED WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER IN VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962 . THE LD. DR ALSO SUBMITS THAT IN THE ARRAY OF GROUNDS, GROUND NO. 5. 1 ALSO CONTAINS SPECIFIC PLEADINGS TO THIS EFFECT. EX-FACIE, THE REVENUES C ONTENTION APPEARS TO BE CORRECT. ON BEING PUT A QUERY BY THE BENCH, THE AR OPPOSES THE REVENUES SUBMISSIONS AND STATES THAT NO ADDITIONAL EVIDENCES HAD BEEN PRODUCED BEFORE THE CIT(A). THIS, IN OUR OPINION, RAISES A V ERY SERIOUS ISSUE OF DISPUTED QUESTION OF FACT. THEREFORE, WE DIRECT THE ASSESSEE TO FILE A DULY VERIFIED AFFIDAVIT ON OR BEFORE 14.02.2013 SPECIFIC ALLY AFFIRMING THEREIN THAT IT DID NOT LEAD ANY EVIDENCE IN ADDITION TO WHAT WA S PRODUCED BEFORE THE ASSESSING OFFICER. I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 8 CASE NOW TO COME UP FOR HEARING ON 14.02.2013. A COPY OF THIS ORDER BE ALSO PLACED IN ALL CONNECTE D FILES, WHEREIN THE SAME ORDER HOLDS GOOD. SD/- SD/- [SH. S.S.G. [SH. NSS JM] AM] IN COMPLIANCE, THE ASSESSEE HAS SUBMITTED BEFORE US ITS AFFIDAVIT DATED 13.02.2013 AS WELL AS A COMPILATION OF RELEVANT DOC UMENTS. THIS TIME, TAKING A U-TURN, IT ADMITS TO HAVE FILED CONFIRMATION LETT ERS FROM CERTAIN PARTIES IN THE LOWER APPELLATE PROCEEDINGS. THE CONTENTS OF THE AF FIDAVIT READ AS UNDER: BEFORE THE HONOURABLE INCOME TAX APPELLATE TRIBUNAL, CHENNAI - 90. AFFIDAVIT OF RAKESH SARIN, MANAGING DIRECTOR OF M/S AKSHAY COMMUNICATIONS PVT LTD. I, RAJESH SALIN, S/O BALRAJ, HINDU, AGED ABOUT 53 Y EARS, HAVING OFFICE AT NO.5E, MOOKAMBIKA COMPLEX. LADY DESIKA ROAD, CHENNA I - 600 004, DO HEREBY SOLEMNLY AFFIRM AND SINCERELY STATE AS UNDER :- I AM THE MANAGING DIRECTOR OF THE PETITIONER COMPAN Y NAMED ABOVE. I AM FULLY CONVERSANT WITH THE FACTS AND CIRCUMSTANCES O F THE CASE. AN APPEAL WAS FILED BY THE DCIT, CENTRAL CIRCLE II FOR THE BLOCK PERIOD AY 1997-98 TO 2002- 03 AND PART OF 2003-04 TO THE HONORABLE INCOME TAX TRIBUNAL VIDE IT(SS) 150-/MDS/2007. SHRI N.K. MOHNOT WAS ENGAGED TO REPRESENT THIS COMP ANY BEFORE THE ASSESSING OFFICER AND IN THE FIRST APPEAL. THIS AFFIDAVIT IS BEING FILED TO PLACE ON RECORD TH AT THE EVIDENCE WITH RESPECT TO THE PROMOTES, SUSPENSE ACCOUNT AND OTHERS WAS PL ACED BEFORE THE ASSESSING OFFICER AS IS EVIDENCED FROM THE LETTERS FROM THE A SSESSING OFFICER AND THE APPELLANT. THE DETAILS OF THE CHEQUE NUMBERS, BANK ACCOUNT DETAILS ETC WAS AVAILABLE AND THE SAME IS ENCLOSED FOR REFERENCE. T HE ASSESSING OFFICER VIDE HIS ASSESSMENT ORDER DATED 23/12/2005 HAS STATED TH AT THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE FOUND 01/04/2000 ONWARDS IN THE T ALLY PACKAGE OF THE COMPUTER WHICH WAS SEIZED. MOREOVER THE BANK RECORD S WERE ALSO SEIZED AND I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 9 AVAILABLE WITH THE ASSESSING OFFICER AS WAS GIVEN I N THE CORRESPONDENCE BETWEEN THE PARTIES. WITH RESPECT TO CONFIRMATIONS ETC THE SAME WERE NOT SOUGHT BY THE ASSESSING OFFICER AS CAN BE SEEN IN T HE LETTERS ISSUED DURING THE COURSE OF ASSESSMENT. I THEREFORE, STATE THAT THE EVIDENCES WERE AVAILABL E WITH THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT WHICH IS EVIDENCED BY THE LETTERS AND COPIES OF ALL EVIDENCES PLACED WITH HIM. A COPY OF ALL THA T IS PLACED IS ATTACHED TO THIS AFFIDAVIT AND SHOULD BE READ AS PART AND PARCE L OF THIS AFFIDAVIT. THE CONFIRMATION LETTERS FROM CERTAIN PARTIES WERE ALSO PLACED BEFORE THE FIRST APPELLATE AUTHORITY WHICH WERE NEVER ASKED FOR BY T HE ASSESSING OFFICER. I THEREFORE, AFFIRM AND STATE THAT ALL THE EVIDENCE S WHICH WERE PLACED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WAS AVAILA BLE WITH THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS EXCEPT TO THE EXTENT STATED ABOVE. A PERUSAL OF THE SAME MAKES IT CLEAR THAT THE ASS ESSEE HAS NOT ACTED FAIRLY IN THE INSTANT JUDICIAL PROCEEDINGS. HOWEVER , IN THE LARGER INTEREST OF JUSTICE, WE REFRAIN OURSELVES FROM OBSERVING ANY FU RTHER. 10. COMING TO REVENUES CONTENTIONS THAT THE ASSES SEE HAD GOT ADMITTED ADDITIONAL EVIDENCES BEFORE THE CIT(A) WITHOUT ASSO CIATING THE ASSESSING OFFICER, THE SAME APPEARS TO BE WELL FOUNDED. AS PE R RULE 46 OF THE INCOME TAX RULES, BEFORE ANY ADDITIONAL EVIDENCE IS ADMITT ED BY THE CIT(A), THE ASSESSING OFFICER HAS TO BE GIVEN AN OPPORTUNITY OF HEARING, WHICH THE CIT(A) HAS OMITTED TO DO. FACED WITH THIS SITUATION , WE DEEM IT APPROPRIATE THAT THE MATTER SHOULD BE RE-EXAMINED BY THE ASSESS ING OFFICER. ACCORDINGLY, WE REMIT THESE THREE APPEALS FILED BY THE REVENUE T O THE FILE OF THE ASSESSING OFFICER, WHO SHALL RE-DECIDE THE ISSUE IN VOLVED HEREINABOVE IN ACCORDANCE WITH LAW AFTER AFFORDING ADEQUATE OPPORT UNITY OF HEARING TO THE I.T I.TI.T I.T(SS) (SS) (SS) (SS).A. .A..A. .A. NO NONO NOS SS S. .. .150 150150 150- -- -152 152152 152/M/ /M/ /M/ /M/07 0707 07 & && & C.O. C.O. C.O. C.O. NO NONO NOS SS S. .. .151 151151 151- -- -153 153153 153/M/11 /M/11 /M/11 /M/11 10 ASSESSEE. SINCE THE MATTER IS AN OLD ONE, IT WOULD BE APPRECIATED IF THE LEARNED ASSESSING OFFICER FINALIZES THE ASSESSMENT WITHIN A PERIOD OF SIX MONTHS FROM GETTING CERTIFIED COPY OF THE ORDER. I.T.(SS)A.NOS. 151 AND 152/MDS/2007 & C.O. NOS. 152 AND 153/MDS/2011 11. BOTH REPRESENTATIVES EXPRESS AGREEMENT BEFORE US THAT THE ISSUE INVOLVED IN THESE APPEALS ARE AKIN TO THOSE DECIDED I.E. I.T.(SS)A. NO. 150/MDS/2007 AND C.O. NO. 151/MDS/2011 HEREINABOVE AND OUR FINDINGS THEREIN WOULD ALSO COVER THE INSTANT APPEALS AS WEL L AS CROSS OBJECTIONS. FINDING THE SUBMISSIONS ADVANCED BY BOTH REPRESENTA TIVES FAIRLY, WE PASS THE SAME ORDER IN THESE APPEALS AND CROSS OBJECTION S. 12. TO SUM UP, APPEALS IN I.T.(SS)A. NOS. 150, 151 AND 152/MDS/2007 ARE ACCEPTED FOR STATISTICAL PURPOSES, WHEREAS, CRO SS OBJECTIONS IN C.O. NOS. 151, 152 AND 153/MDS/2011 ARE DISMISSED AS HOPELESS LY TIME BARRED. ORDER PRONOUNCED ON MONDAY, THE 25 TH OF FEBRUARY, 2013 AT CHENNAI. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER CHENNAI, DATED, THE 25.02.2013 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.