S.Selvaraj, Tiruppur V. ITO, Tiruppur

ITA 1101/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7855 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: A.S.SRIRAMAN
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI . . . , !'. . # $ % , ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.1101/MDS/2015 * +* /ASSESSMENT YEAR: 2009-10 M/S.S.SELVARAJ, MURTHY COTTON WASTE COMPANY, NO.278, SABAPATHIPURAM, TIRUPPUR-641 601. VS. THE INCOME TAX OFFICER, WARD-I (1), TIRUPPUR. [PAN: AHFPS 3964 D ] ( ,- /APPELLANT) ( ./,- /RESPONDENT) ,- 0 1 / APPELLANT BY : MR.A.S.SRIRAMAN, ADV. ./,- 0 1 /RESPONDENT BY : MR.SHIVA SRINIVAS, JCIT # 0 2' /DATE OF HEARING : 09.01.2017 34+ 0 2' /DATE OF PRONOUNCEMENT : 31.01.2017 / O R D E R PER D.S.SUNDER SINGH , ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 12.01.2015 OF COMMISSIONER OF INCOME TAX (APPEALS)- 3, COIMBATORE, IN ITA NO.476/14-15 FOR THE AY 2009-10. ITA NO.1101/MDS/2015 :- 2 -: 2.0 ALL THE GROUNDS OF THE APPEAL ARE RELATED TO THE I MPOSITION OF PENALTY BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO A S AO) FOR AN AMOUNT OF RS.10,70,845/- U/S.271(1)(C) OF THE INCOME TAX ACT. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSES SEE MADE DEPOSITS IN SAVINGS BANK ACCOUNT OF THE ASSESSEE WITH ICICI, TI RUPPUR BRANCH AGGREGATING TO RS.31,24,279/- IN CASH AND CHEQUE. THE ASSESSEE DID NOT FURNISH THE DETAILS AND EVIDENCES FOR NATURE AND TH E SOURCE OF THE DEPOSITS. THEREFORE, THE AO MADE THE ADDITION OF R S. 31,24,279/- U/S.69 OF INCOME TAX ACT AND INITIATED PENALTY U/S.271(1)( C). THE ASSESSEE WENT ON APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) [HEREINAFTER REFERRED TO AS LD.CIT(A)] AND THE LD .CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. SUBSEQUENTLY, THE AO ALSO LEVIED PENALTY U/S 271(1)(C) OF INCOME TAX ACT AND THE LD.CIT(A) CONFI RMED THE PENALTY ORDER. THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUN AL AGAINST THE QUANTUM ORDER AS WELL AS THE PENALTY ORDER AND THE ITAT B BENCH IN ITA NO.1380 & 1381 DATED 08.08.2014 REMITTED THE MATTER BACK TO THE FILE OF THE LD.CIT(A) SINCE THE LD.CIT(A) HAD PASSED THE EX-PARTE ORDERS AND DIRECTED THE LD.CIT(A) TO GIVE OPPORTUNITY TO THE ASSESSEE AND DECIDE THE MATTERS A FRESH. 3.0 IN THE SECOND ROUND ALSO, THE LD.CIT(A) DECIDED TH E PENALTY APPEAL ON 12.01.2015 EX-PARTE . THE LD.CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE AO. THE LD.CIT(A) IN PARA NO.7 STATED THAT THE CASE WAS POSTED FOR HEARING ON 09.10.2011 AND 28.10.2011 AND THERE WAS NO RESPONSE ITA NO.1101/MDS/2015 :- 3 -: FROM THE ASSESSEE. IN THE GROUNDS OF THE APPEAL BE FORE US, THE ASSESSEE STATED THAT THE FIRST HEARING NOTICE WAS ISSUED WIT H WRONG PAN AND THE ASSESSMENT YEAR, HENCE THE ASSESSEE DID NOT ATTEND THE HEARING. IN THE SECOND HEARING NOTICE WHICH WAS SERVED ON THE ASSES SEE ON 18.10.2014, POSTING THE CASE FOR HEARING ON 28/10/2014, THE ASS ESSEE WAS ADMITTED IN THE HOSPITAL AND DUE TO HOLIDAYS, HE HAS REQUESTED THE LD.CIT(A) FOR ADJOURNMENT OF CASE TO NOVEMBER THROUGH LETTER TO T HE OFFICE OF THE CIT(A) ON 30.10.2014. BUT, THE OFFICE OF CIT(A) REF USED TO ACCEPT THE LETTER AND THE APPEAL WAS DECIDED EX-PARTE . THE LD.AR ARGUED THAT THE CIT(A) DECIDED THE APPEAL AGAINST THE ASSESSEE WITH OUT GIVING REASONABLE OPPORTUNITY. THEREFORE, THE ASSESSEE REQUESTED FOR ONE MORE OPPORTUNITY AND TO REMIT HIS CASE BEFORE THE LD.CIT(A). ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE [HEREINAFTER RE FERRED TO AS LD.DR] ARGUED THAT THE CASE WAS POSTED BY LD.CIT(A) ON 09. 10.2014 AND THE ASSESSEE DID NOT APPEAR ON FLIMSY GROUND OF WRONG P AN, ETC. INSTEAD OF AVOIDING AND NON-COOPERATING WITH THE CIT(A), THE A SSESSEE SHOULD HAVE APPEARED BEFORE THE LD.CIT(A) AND CORRECTED THE MIS TAKE IF ANY AND COOPERATED WITH THE DEPARTMENT. IN THE SECOND INST ANCE, THOUGH THE NOTICE WAS SERVED ON 18.10.2014, THE ASSESSEE DID N OT RESPONDED TO THE NOTICE. IN SPITE OF DIRECTIONS FROM THE ITAT, THE ASSESSEE CONTINUED HIS NON-COOPERATION. THEREFORE, THE LD.DR CONTENDED THA T NO USEFUL PURPOSE WILL BE SERVED IF THE MATTER IS REMITTED AGAIN AND REQUESTED TO BE CONFIRM THE PENALTY IMPOSED. ITA NO.1101/MDS/2015 :- 4 -: 4.0 WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL PLACED ON RECORD. IT IS CLEAR FROM THE ORDER OF THE LD.CIT(A) THAT T HOUGH TWO OPPORTUNITIES WERE GIVEN TO THE AASESSEE, HE DID N OT APPEAR AND SUBMIT HIS EXPLANATION BEFORE THE LD.CIT(A). WHEN THE NOT ICE WAS SERVED ON ASSESSEE FIXING THE CASE FOR HEARING, IT IS THE DUT Y OF THE ASSESSEE TO COMPLY WITH THE NOTICE AND BRING THE DEFECTS IF ANY TO THE NOTICE OF THE AUTHORITIES CONCERNED FOR CORRECTION. IN THE SECOND INSTANCE ALSO THE ASSESSEE DID NOT EXPLAIN THE REASONS FOR FAILURE WI TH TANGIBLE EVIDENCE. THEREFORE, WE ARE UNABLE TO APPRECIATE THE REASONS GIVEN BY THE ASSESSEE FOR NON-APPEARANCE IN SPITE OF SPECIFIC DIRECTIONS FROM THIS TRIBUNAL TO CO- OPERATE WITH THE DEPARTMENT. HOWEVER, IN THIS CASE , THE ISSUE IS RELATED TO EX-PARTE ORDER CONFIRMING THE PENALTY IMPOSED U/S.271(1)(C) . IT WAS SUBMITTED BEFORE US BY THE LD.AR THAT THE ASSESSEE HAS ALREADY MADE THE PAYMENT OF TAXES WITH REGARD TO QUANTUM ADDITION. THEREFORE, WE ARE OF THE OPINION THAT ONE MORE OPPORTUNITY SHOULD BE GIV EN TO THE ASSESSEE IN THE INTEREST OF THE JUSTICE AND THE ASSESSEE IS DIR ECTED TO CO-OPERATE WITH THE CIT(A) TO BE SUBMIT NECESSARY EVIDENCES, EXPLAN ATIONS BEFORE THE LD.CIT(A) FOR DISPOSING OF THE APPEAL. ACCORDINGLY , THE MATTER IS REMITTED BACK TO THE FILE OF THE LD. CIT (A) TO DECIDE THE M ATTER AFRESH ON MERITS AFTER HEARING THE ASSESSEE. ITA NO.1101/MDS/2015 :- 5 -: 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2017, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( !' . . # $ % ) (D.S.SUNDER SINGH) ' /ACCOUNTANT MEMBER /CHENNAI, 5 /DATED: 31 ST JANUARY, 2017. TLN 0 .2$6 76+2 /COPY TO: 1. ,- /APPELLANT 4. # 82 /CIT 2. ./,- /RESPONDENT 5. 69 .2 /DR 3. # 82 ( ) /CIT(A) 6. '* < /GF