ITO, CHENNAI V. Intellectual Realty, CHENNAI

ITA 1074/CHNY/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4408 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 07-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: S SRIDHAR
• Section: 40A(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !.. # $%, ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.1074/MDS/2013 + ,+ / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, BUSINESS WARD XV(4), CHENNAI - 600 034. V. M/S INTELLECTUAL REALTY, OLD NO.34, NEW NO.58, VEERABADRAN STREET, NUNGAMBAKKAM, CHENNAI - 600 034. PAN : AADFI 1760 N (.// APPELLANT) (01.// RESPONDENT) ./ 2 3 / APPELLANT BY : SHRI SUPRIYO PAL, JCIT 01./ 2 3 / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE # 2 4' / DATE OF HEARING : 09.03.2017 56, 2 4' / DATE OF PRONOUNCEMENT : 31.05.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE WAS DISPOSED OF EARLI ER BY AN ORDER DATED 22.07.2016. THE REVENUE FILED A MISCEL LANEOUS PETITION IN M.P. NO.306/MDS/2016 ON THE GROUND THAT THE GROUND RELATING TO DISALLOWANCE UNDER SECTION 40A(3) OF TH E INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') WAS NOT DISPOSED OF BY TH IS TRIBUNAL. 2 I.T.A. NO.1074/MDS/13 ACCORDINGLY, THE APPEAL OF THE REVENUE WAS REOPENED ONLY FOR THE PURPOSE OF DISPOSAL OF GROUND RELATING TO 40A(3) OF THE ACT WHICH WAS RAISED BY THE REVENUE IN GROUNDS NO.4.1 AND 4.2 IN THE APPEAL. 2. SHRI SUPRIYO PAL, THE LD. DEPARTMENTAL REPRESENT ATIVE, SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED ` 18,91,958/- UNDER SECTION 40A(3) OF THE ACT. THE ASSESSING OFFICER D ISALLOWED THE CLAIM OF THE ASSESSEE SINCE THE PAYMENT EXCEEDED ` 20,000/- TO A PERSON ON A PARTICULAR DAY. THE CIT(APPEALS) FOUND THAT THE LEDGER EXTRACT AND VOUCHERS DID NOT SHOW ANY CASH PAYMENT TO ANY PERSON ON A PARTICULAR DAY EXCEEDING ` 20,000/-. THIS LEDGER EXTRACT AND VOUCHERS WERE NOT PRODUCED BY THE ASSESSEE BEFORE T HE ASSESSING OFFICER. THEREFORE, THERE WAS A VIOLATION OF RULE 46A OF INCOME-TAX RULES, 1962. THE CIT(APPEALS) WITHOUT CALLING FOR ANY REMAND REPORT AND WITHOUT GIVING ANY OPPORTUNITY TO THE AS SESSING OFFICER, ALLOWED THE CLAIM OF THE ASSESSEE. THE ASSESSING O FFICER HAD NO OCCASION TO EXAMINE THE LEDGER EXTRACT AND VOUCHERS . THEREFORE, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) IS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE. 3. WE HAVE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FO R THE ASSESSEE ALSO. THE LD.COUNSEL SUBMITTED THAT THE C IT(APPEALS) 3 I.T.A. NO.1074/MDS/13 AFTER VERIFYING LEDGER AND VOUCHERS, FOUND THAT THE ASSESSEE HAS NOT PAID TO ANY PERSON MONEY EXCEEDING ` 20,000/- ON A PARTICULAR DAY. ON A QUERY FROM THE BENCH WHETHER COPIES OF SAID EX TRACT OF LEDGER AND VOUCHERS WERE AVAILABLE BEFORE THE ASSESSING OF FICER? THE LD.COUNSEL VERY FAIRLY SUBMITTED THAT THE LEDGER EX TRACT AND VOUCHERS WERE NOT FILED BEFORE THE ASSESSING OFFICE R, HENCE, THE MATTER MAY BE REMITTED BACK FOR VERIFICATION. 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE CIT(APPEALS) AFTER VERIFYING THE LEDGER EXTRACT AND VOUCHERS FOUND THAT CASH PAYMENT DID NOT EXCEED ` 20,000/- ON A PARTICULAR DAY TO ANY PARTICULAR PERSON. HOWEVER, THE COPIES OF LEDG ER EXTRACT AND VOUCHERS WERE NOT FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. MOREOVER, THE REVENUE CLAIMS THAT THE ASS ESSING OFFICER HAD NO OCCASION TO EXAMINE LEDGER EXTRACT AND VOUCH ERS. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE MATTER NEEDS TO BE RE-EXAMINED. ACCORDINGLY, THE O RDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF DI SALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40A(3) OF TH E ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASS ESSING OFFICER 4 I.T.A. NO.1074/MDS/13 SHALL RE-EXAMINE THE MATTER AFRESH AFTER VERIFYING THE LEDGER EXTRACT AND VOUCHERS AND OTHER MATERIAL THAT MAY BE FILED B Y THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IT IS MADE CLEAR THAT THE ORDER OF THIS TRIBUNAL DATED 22.07.2016 IN RESPECT OF OTHER ISSUES REMAIN AS SUC H. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE RE VENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 31 ST MAY, 2017 AT CHENNAI. SD/- SD/- ( ! . . # $% ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 8 /DATED, THE 31 ST MAY, 2017. KRI. 2 04$9 :9,4 /COPY TO: 1. ./ /APPELLANT 2. 01./ /RESPONDENT 3. # ;4 () /CIT(A)-XII, CHENNAI-34 4. # ;4 /CIT-X, CHENNAI 5. 9< 04 /DR 6. !+ = /GF.