ITO, International Taxation 02(1), Chennai V. Shri Rohit Kumar Nemichand Piparia, Chennai

CO 54/CHNY/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 4090 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SRIDHAR
• Keywords: Reasonable cause; Condonation of delay
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.255/CHNY/2018 & C.O. NO.54/CHNY/2018 (IN I.T.A. NO.255/CHNY/2018) ' (' / ASSESSMENT YEAR : 2008-09 SHRI ROHIT KUMAR NEMICHAND PIPARIA, C/O SHRI S. SRIDHAR, SH. A.S. SRIRAMAN, ADVOCATES, NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI - 600 020. PAN : AKZPP 0661 M V. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION -2(1), CHENNAI. (*+/ APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) *+ , - / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ./*+ , - / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 0 , 1$ / DATE OF HEARING : 02.07.2018 2!( , 1$ / DATE OF PRONOUNCEMENT : 28.08.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -16, CHENN AI, DATED 23.03.2017 AND PERTAINS TO ASSESSMENT YEAR 2008-09. THE REVENUE HAS 2 I.T.A. NO.255/CHNY/18 C.O. NO.54/CHNY/18 FILED THE CROSS-OBJECTION. THEREFORE, WE HEARD BOT H THE APPEALS AND CROSS-OBJECTION TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THERE WAS A DELAY OF 225 DAYS IN FILING THE APPEAL BY THE ASSESSEE BEFORE THIS TRIBUNAL. ACCORDING TO THE LD. COUNSEL, THE A SSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY, WHEREIN THE ASSE SSEE CLAIMS THAT HE WAS RESIDING OUTSIDE THE COUNTRY. THE COPY OF ORDE R PASSED BY THE CIT(APPEALS), WHICH WAS RECEIVED BY HIS POWER OF AT TORNEY HOLDER BY SHRI VIMAL K. KAMDAR ON 12.04.2017, WAS MISPLACED BY HIM DUE TO FREQUENT ILLNESS. THE LD.COUNSEL FURTHER SUBMITTED THAT THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE DIED RECENTLY. AFTER THE DE ATH OF POWER OF ATTORNEY HOLDER, ACCORDING TO THE LD. COUNSEL, THE ASSESSEE CONSULTED HIS CHARTERED ACCOUNTANT SHRI KALYAN AND ON HIS INSTRUC TION, THE APPEAL WAS FILED. THE ASSESSEE BEING NON-RESIDENT, ACCORDING TO THE LD. COUNSEL, HE WAS PREVENTED FROM FILING THE RETURNS WITHIN THE PR ESCRIBED TIME LIMIT. 3. ON THE CONTRARY, SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE HAS NO REASONABLE CAUSE. THE LD. D.R. FURTHER SUBMITTED THAT THE CROSS-OBJEC TION WAS FILED ONLY TO OBJECT THE CONDONATION OF DELAY BY THIS TRIBUNAL. THE LD. D.R. CLARIFIED THAT THE CROSS-OBJECTION WAS FILED ONLY TO OPPOSE T HE CONDONATION OF DELAY 3 I.T.A. NO.255/CHNY/18 C.O. NO.54/CHNY/18 IN FILING THE APPEAL BEFORE THIS TRIBUNAL. THE LD. D.R. HAS PLACED HIS RELIANCE ON THE JUDGMENT OF MADRAS HIGH COURT IN IN DERCHAND D. KOCHAR & OTHERS IN TAX CASE APPEAL NOS.522, 523, 507, 508 AND 509 OF 2016 DATED 03.08.2016. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE. THE ASSESSEE HAS FILED AFFIDAVIT FOR CONDONATION OF 225 DAYS OF DELAY IN FILING THE APPEAL BEFORE THIS TRIBUNAL AND NO COUNTER AFFI DAVIT WAS FILED BY THE REVENUE DENYING THE ALLEGATIONS MADE BY THE ASSESSE E IN THE AFFIDAVIT. HOWEVER, THE REVENUE HAS FILED A SEPARATE CROSS-OBJ ECTION. CROSS- OBJECTION CAN BE FILED ONLY IN RESPECT OF ISSUES WH ICH WERE DECIDED AGAINST THE REVENUE BY THE CIT(APPEALS). THEREFORE , THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CROSS-OBJECTION FIL ED BY THE REVENUE IS NOT MAINTAINABLE. 5. NOW COMING TO THE DELAY OF 225 DAYS, IT IS NOT I N DISPUTE THAT THE ASSESSEE IS A NON-RESIDENT AND POWER OF ATTORNEY HO LDER RECEIVED THE COPY OF ORDER FROM THE CIT(APPEALS). IT IS ALSO NO T IN DISPUTE THAT THE POWER OF ATTORNEY HOLDER DIED RECENTLY. IN THOSE C IRCUMSTANCES, GIVING AN OPPORTUNITY TO THE ASSESSEE TO ARGUE THE CASE ON ME RIT WOULD NOT PREJUDICE THE INTERESTS OF THE REVENUE. MOREOVER, THE LITIGATION UNDER THE INCOME-TAX ACT IS DIFFERENT FROM THE LITIGATION UND ER THE COMMON LAW. UNDER THE COMMON LAW, THE ISSUE OF LIMITATION ASSUM ES IMPORTANCE ON 4 I.T.A. NO.255/CHNY/18 C.O. NO.54/CHNY/18 THE PRINCIPLE OF VESTED INTEREST / VESTED RIGHT. I N OTHER WORDS, THE VESTED RIGHT CANNOT BE DISTURBED SO LIGHTLY. SUCH A CONCE PT OF VESTED RIGHT IS NOT AVAILABLE TO THE REVENUE IN THE INCOME-TAX PROCEEDI NG. CONSTITUTION OF INDIA IN CATEGORICAL TERM DECLARES THAT THE REVENUE CANNOT COLLECT ANY TAX UNLESS IT IS AUTHORIZED BY LAW. THEREFORE, THE REV ENUE CANNOT RETAIN A SINGLE PIE OF THE ASSESSEE UNLESS IT IS AUTHORIZED BY LAW. THE CONCEPT OF VESTED RIGHT OR VESTED INTEREST IS ALIEN TO THE INC OME-TAX PROCEEDING. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY MERIT IN T HE OBJECTION OF THE REVENUE. ACCORDINGLY, THE DELAY OF 225 DAYS IN FIL ING THE APPEAL BY THE ASSESSEE BEFORE THIS TRIBUNAL IS CONDONED AND THE A PPEAL OF THE ASSESSEE IS ADMITTED. 6. NOW COMING TO THE MERIT OF THE APPEAL, SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASS ESSEE FILED RETURN OF INCOME ON 05.02.2009 FOR THE ASSESSMENT YEAR 2008-0 9. ON EXAMINATION OF MATERIAL FOUND, THE ASSESSING OFFICE R FOUND THAT THERE WERE SHARE TRANSACTIONS, WHICH WERE NOT DISCLOSED B Y THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER REOPENED THE ASSES SMENT BY ISSUING NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 196 1 (IN SHORT 'THE ACT'). REFERRING TO THE ORDER OF THE CIT(APPEALS), THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIGURES MENTIONED BY TH E CIT(APPEALS) ARE 5 I.T.A. NO.255/CHNY/18 C.O. NO.54/CHNY/18 NOT CORRECT. THE ASSESSING OFFICER HAD ALSO NOT TA KEN THE CORRECT FIGURES FOR COMPUTING THE CAPITAL GAIN. 7. ON THE CONTRARY, SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE ENTERED INTO A HUGE SHARE TRANSACTION, THE CAPITAL GAIN ARISING OUT OF SUCH T RANSACTION WAS NOT DISCLOSED. THEREFORE, THE ASSESSING OFFICER REOPEN ED THE ASSESSMENT UNDER SECTION 147 OF THE ACT BY ISSUING NOTICE UNDE R SECTION 148 OF THE ACT ON 26.03.2015. HENCE, ACCORDING TO THE LD. D.R ., THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OF FICER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSEE ADMITTEDLY FILED RETURN OF INCOME ON 05.02.2009, HOWEVER, THE SHARE TRANSACTIONS WERE AD MITTEDLY NOT DISCLOSED BY THE ASSESSEE. SINCE THE FIGURES WITH REGARD TO SHARE TRANSACTIONS ARE CLAIMED TO BE WRONGLY MENTIONED BY THE CIT(APPEALS), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE- EXAMINED. 9. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE O F THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER A FRESH AND BRING ON 6 I.T.A. NO.255/CHNY/18 C.O. NO.54/CHNY/18 RECORD ALL THE TRANSACTIONS CORRECTLY, THEREAFTER D ECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPO RTUNITY TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. HOWEVER, THE CROSS-OBJECTION OF THE REVE NUE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 28 TH AUGUST, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 28 TH AUGUST, 2018. KRI. , .156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ./*+ /RESPONDENT 3. 0 81 () /CIT(A)-16, CHENNAI 4. CIT (INTERNATIONAL TAXATION), CHENNAI 5. 69 .1 /DR 6. :' ; /GF.