Niranjan Kumar, CHENNAI V. ITO Non Corporate Ward 1(4), CHENNAI

CO 185/CHNY/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3661 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 20-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . . . , . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2244/CHNY/2017 ( / ASSESSMENT YEAR: 2012-13) SHRI NIRANJAN KUMAR, 8A/23, 2 ND FLOOR, SAMBASIVAM STREET, T.NAGAR, CHENNAI 600 017. VS THE INCOME TAX OFFICER, NON CORPORATE WARD 1(4), CHENNAI. PAN: ALMPK4499E ( /APPELLANT) ( /RESPONDENT) & ./ I.T.A.NO.2446/CHNY/2017 ( / ASSESSMENT YEAR: 2012-13) THE INCOME TAX OFFICER, NON CORPORATE WARD 1(4), CHENNAI. VS SHRI NIRANJAN KUMAR, 8A/23, 2 ND FLOOR, SAMBASIVAM STREET, T.NAGAR, CHENNAI 600 017. PAN: ALMPK4499E ( /APPELLANT) ( /RESPONDENT) & C.O. NO.185/CHNY/2017 ( IN ITA NO. 2446/CHNY/2017 ) SHRI NIRANJAN KUMAR, 8A/23, 2 ND FLOOR, SAMBASIVAM STREET, T.NAGAR, CHENNAI 600 017. VS THE INCOME TAX OFFICER, NON CORPORATE WARD 1(4), CHENNAI. PAN: ALMPK4499E ( /APPELLANT) ( /RESPONDENT) & STAY PETITION NO.149/CHNY/2018 ( ./ IN I.T.A.NO.2244/CHNY/2017 ( / ASSESSMENT YEAR :2012-13) SHRI NIRANJAN KUMAR, 8A/23, 2 ND FLOOR, SAMBASIVAM STREET, T.NAGAR, CHENNAI 600 017. VS THE INCOME TAX OFFICER, NON CORPORATE WARD 1(4), CHENNAI. PAN: ALMPK4499E ( /APPELLANT) ( /RESPONDENT) 2 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018 *+ , - . /ASSESSEE BY : SHRI S. SRIDHAR, ADVOCATE /0 , - . / REVENUE BY : SHRI AR. V. SREENIVASAN, JCIT , +34 /DATE OF HEARING : 03.04.2018 , +34 /DATE OF PRONOUNCEMENT : 06.04.2018 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THE APPEAL BY THE ASSESSEE & REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, CHENNAI, DATED 12.06.2017 IN ITA NO.77/CIT(A)-2/2015-16 FOR THE ASSESSMENT YEAR 2012-13 PASSED U/S.250(6) R.W.S. 14 3(3) OF THE ACT. THE ASSESSEE HAS ALSO FILED STAY PETITION IN SP NO. 149 OF 2018. 2.1 ASSESSEES APPEAL, ITA NO.2224 OF 2017 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HI S APPEAL:- 1. THE APPELLANT IS ONE OF THE CO-OWNERS OF THE PRO PERTY AT 189, ROYAPETTAH HIGH ROAD WHICH WAS SOLD. THE ASSESSEE RETURNED LO NG TERM CAPITAL GAIN WORKING ON THE SALE OF THE PROPERTY. INCOME TAX OFF ICER PASSED AN ORDER FIXING THE LONG TERM CAPITAL GAIN AT A HIGH FIGURE. BOTH THE ABOVE WORKINGS WERE BASED ON A LETTER OF COMMITMENT DATED 19 TH MARCH 2010, COPY OF WHICH 3 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018 IS ENCLOSED. BUT THE CIT APPEAL HAS REFERRED THE LE TTER OF COMMITMENT DATED 17 TH JUNE 2010, WHICH WAS NOT ACTED UPON EITHER BY THE ASSESSEE OR BY THE DEPARTMENT. AS SUCH IT IS SUBMITTED THAT THE DIRECT IONS BE GIVEN TO INCOME TAX OFFICER TO REDO THE ASSESSMENT. ON THE BASIS OF THE FIRST PART OF THE CIT'S APPELLATE ORDER WHEREIN THE CIT APPEAL HAS ALLOWED ALL THE GROUNDS OF APPEAL OF THE APPELLANT AS PER APPEAL PETITION FILE D BY THE APPELLANT. 2. THE APPELLANT MAY BE PERMITTED TO FILE ADDITIONA L GROUNDS OF APPEAL EITHER AT THE TIME OF OR BEFORE HEARING OF THE APPEAL PETI TION. 2.2 REVENUES APPEAL, ITA NO.2446 OF 2017 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 1.1 THE LEARNED CIT(A) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE, ALBEIT FOR STATISTICAL PURPOSES, AND DIRECTING THE AO TO A SCERTAIN THE QUANTUM OF CONSIDERATION RECEIVED BY REQUISITIONING THE BOOKS OF THE DEVELOPER, WHICH IS IN VIOLATION OF PROVISIONS OF SEC.251(1)(A) AS THE PROVISIONS OF SEC.251 ONLY ALLOW THE CIT(A) TO CONFIRM, REDUCE/ ENHANCE OR ANN UL THE ASSESSMENT IN AN APPEAL AGAINST THE ASSESSMENT, BUT DOES NOT PROVIDE THE POWER TO REMIT THE ISSUE TO THE AO FOR FURTHER VERIFICATION. 2. THE LEARNED CIT(A) ERRED IN ADMITTING FRESH EVID ENCE IN RESPECT OF RENTAL PAYMENTS IN RESPECT OF THE ALTERNATIVE ACCOMMODATIO N PROVIDED TO THE CO- OWNERS, WITHOUT ADHERING TO THE PROVISIONS OF RULE 46A AND , AS SUCH THE ORDER OF THE CIT(A) IS BAD IN LAW? 2.1 THE LEARNED CIT(A) ERRED IN NOT REMANDING THE I SSUE BACK TO THE FILE OF THE AO DESPITE THERE BEING CONFLICTING SUBMISSIONS BY THE ASSESSEE REGARDING THE SALE CONSIDERATION RECEIVED IN RESPECT OF THE J OINT VENTURE DEVELOPMENT ENTERED INTO BY THE ASSESSEE WITH THE DEVELOPER. 2.2 FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEARNED CIT(A) M AY BE SET ASIDE AND THAT OF THE A.O. RESTORED. 4 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018 2.3 ASSESSEES CROSS OBJECTION, CO NO.185 OF 2017 THE ASSESSEE HAS RAISED A CROSS OBJECTION AGAINST T HE APPEAL OF THE REVENUE IN ITA NO.2224 OF 2017 WITH T HE FOLLOWING GROUNDS IN ITS APPEAL:- 1. IN SECTION 251(1)(C) THE COMMISSIONER OF INCOME TAX MAY PASS ANY SUCH ORDER AS HE DEEMS FIT AND AS SUCH THE CIT(A) HAS TH E POWER TO PASS ANY ORDER AS HE DEEMS FIT. 2. NO FRESH EVIDENCE WAS PRODUCE BEFORE THE CIT(A) AND THE ASSESSEE HAS ALREADY SENT A REPLY TO THE CONCERNED OFFICER REGAR DING ALTERNET ACCOMMODATION. NO ALTERNET ACCOMMODATION WAS PROVI DED TO THE APPELLANT. 3. THE CIT(A) HAS GONE INTO ALL THE FACTS AND CIRCU MSTANCE OF THE CASE, AND HAS PASSED THE ORDER ON THE BASIS OF RECORDS AVAILA BLE WITH THEM. 2.4 ASSESSEES STAY PETITION, SP NO.149 OF 2018 THE ASSESSEE HAS ALSO RAISED A STAY PETITION SEEKI NG STAY OF THE OUTSTANDING DEMAND OF RS.20,49,562/- FOR THE ASSESS MENT YEAR 2012-13. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL EARNING INCOME FROM HOUSE PROPERTY, FILE D HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 16.10.201 2 ADMITTING TOTAL INCOME OF RS.28,420/-. INITIALLY THE RETURN W AS PROCESSED U/S.143(1) OF THE ACT AND SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND THEREAFTER ASSESSMENT WAS C OMPLETED 5 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018 U/S.143(3) OF THE ACT ON 23.03.2015. SUBSEQUENTLY T HE ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A) WHEREBY THE LD.CIT(A) PASSED THE APPELLATE ORDER ON 12.06.2017 AGGRIEVED BY WHICH THE REVENUE AND THE ASSESSEE ARE BOTH IN APPEAL BEFORE US ALONG WITH THE CROSS OBJECTION OF THE ASSESSEE. 4. AT THE OUTSET THE LD.DR SUBMITTED BEFORE US THA T THE LD.CIT(A) HAS ERRED BY ADMITTING FRESH EVIDENCE, BA SED ON WHICH HE HAS GRANTED RELIEF TO THE ASSESSEE WITHOUT OBTAI NING REMAND REPORT FROM THE LD.AO WHICH IS IN VIOLATION OF THE PROVISIONS OF RULE 46A OF THE RULES. HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF LD.AO FOR DE-NOVA C ONSIDERATION. THE LD.AR COULD NOT CONTROVERT TO THE SUBMISSION OF THE LD.DR. THE LD.AR FURTHER PLEADED THAT WITH RESPECT TO HIS APPEAL ALSO THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD.AO FO R FRESH CONSIDERATION AGAINST WHICH THE LD.DR DID NOT RAISE ANY SERIOUS OBJECTION. 5. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE O PINION THAT THE APPEAL OF THE ASSESSEE AS WELL AS THE REVENUE R EQUIRES TO BE REMITTED BACK TO THE FILE OF LD.AO FOR FRESH CONSID ERATION AS PER THE 6 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018 REQUEST OF BOTH THE ASSESSEE AS WELL AS THE REVENUE . ACCORDINGLY WE HEREBY REMIT BACK THE APPEAL OF THE ASSESSEE AS WELL AS THE REVENUE BACK TO THE FILE OF LD.AO FOR DE-NOVA CONSI DERATION. SINCE WE HAVE REMITTED BACK BOTH THE APPEAL OF THE ASSESS EE AS WELL AS THE REVENUE TO THE FILE OF THE LD.AO FOR FRESH CONS IDERATION, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME IN FRUCTUOUS. SIMILARLY THE STAY PETITION FILED BY THE ASSESSEE H AS ALSO BECOME INFRUCTUOUS. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE AS WEL L AS THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES AND TH E CROSS OBJECTION AND STAY PETITION FILED BY THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED ON THE 06 TH APRIL, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER 7.8 /CHENNAI, 9: /DATED 06 TH APRIL, 2018 RSR :. , +<= >.=+ /COPY TO: 1. *+/ ASSESSEE 2. /0 /REVENUE 3. ?+ ( )/CIT(A) 4. ?+ /CIT 5. =@A + B /DR 6. AC /GF 7 ITA NOS. 2244, 2446/CHNY/2017 CO NO.185/CHNY/2017 & SP NO.149/CHNY/2018