B.Suresh Kumar, CHENNAI V. ITO Corp. Ward 3(4), CHENNAI

ITA 1152/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4121 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R MURALIDHARAN
• Keywords: TDS
• Section: 143(3); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , , ! ' BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NO. 1152/CHNY/2019 / ASSESSMENT YEAR : 2009-10 SHRI. B. SURESH KUMAR, NO. 14, POES ROAD, 1 ST STREET, TEYNAMPET, CHENNAI 600 018. [PAN: ALHPS 0004J] VS. INCOME TAX OFFICERM CORPORATE WARD 3(4), CHENNAI. ( / APPELLANT) ( #$%& /RESPONDENT ) %& ' ( / APPELLANT BY : SHRI. K.R. MURALIDHARAN, CA #$%& ' ( / RESPONDENT BY : SHRI. AR V SREENIVASAN, JCIT * '+! /DATE OF HEARING : 20.11.2019 ,-. '+! /DATE OF PRONOUNCEMENT : 17.02.2020 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-7, CHENNAI IN ITA NO. 99(T)/CIT(A)-7/2017-18 DATED 25.01.2019 FOR ASSESSM ENT YEAR 2009- 10. :-2-: ITA NO.1152/CHNY/2019 2. SHRI. B. SURESH KUMAR, THE ASSESSEE, DIRECTOR OF M/S. S&S ENTERPRISES IS ENGAGING IN PROVIDING END TO END LIA ISON SERVICE TO VARIOUS MULTINATIONAL COMPANIES AND CORPORATE CLIENTS ENGAG ED IN POWER SECTOR. ASSESSMENT FOR THE ASSESSMENT YEAR 2009-10 WAS COMP LETED U/S. 143(3) ON 29.06.2011. SUBSEQUENTLY, THE AO ISSUED A NOTICE U/S. 148 DATED 25.01.2016 AND MADE A REASSESSMENT U/S. 143(3 ) R.W. 147 ON 30.11.2016 BY DISALLOWING RS. 28,94,385/- U/S. 40(A )(IA). AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED AN APPEAL BE FORE THE CIT(A). THE LD. CIT(A) DISMISSED THE APPEAL. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED THIS APPEAL. 3. THE LD. AR SUBMITTED THAT THE PRIMARY ISSUE IN T HIS CASE IS VALIDITY OF REOPENING THE ASSESSMENT. THE ASSESSEES ASSESS MENT U/S. 143(3) WAS COMPLETED ON 29.06.2011, AFTER EXAMINING PARTY WISE SERVICES CHARGED OFFERED IN THE P&L ACCOUNT, OTHER MATERIAL AND AFTER CONSIDERED GIVING CREDIT FOR THE TDS CERTIFICATES ETC. AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR 2009-10, THE AO ISSUED A NOTICE U/S. 148 DATED 25.01.2016. IN SUCH CASE, IN ACCORD ANCE WITH FIRST PROVISO TO SECTION 147, THE OFFICER SHOULD HAVE REC ORDED THE REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT IN THAT ASSESSME NT YEAR. IN THIS CASE, THERE IS NO FRESH MATERIAL AND THERE IS NO FA ILURE ON THE PART OF THE :-3-: ITA NO.1152/CHNY/2019 ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR THE ASSESSMENT. THEREFORE, THE REASSESSMENT MADE IS NO T VALID AND IS NOT IN ACCORDANCE WITH LAW. THE LD. CIT(A) ERRED IN UP HOLDING THE REASSESSMENT BY SIMPLY OBSERVING THAT AS PER CBDT I NSTRUCTION NO. 9/06 DATED 07.11.2006, REMEDIAL ACTION HAS TO BE MANDATO RILY TAKEN WHERE THE REVENUE AUDIT PARTY RAISED AN OBJECTION, WITHOU T FOLLOWING AND APPLYING THE LAW ON THIS ASPECT. PER CONTRA, THE L D. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 4. WE HEARD THE RIVAL SUBMISSIONS AND FIND MERIT IN THE SUBMISSIONS MADE BY THE LD. AR. THE ASSESSMENT FOR THE ASSESSM ENT YEAR 1989-90 WAS COMPLETED U/S. 143(3) ON 29.06.2011. IN SUCH C ASE, AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSE SSMENT YEAR, THE AO CAN PROCEED TO REASSESS THE INCOME ONLY WHEN HE REC ORDS THE REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT IN THAT ASSESSME NT YEAR. IN THIS CASE, THE MATERIAL ON WHICH THE ASSESSING OFFICER R EOPENED WERE FILED BY THE ASSESSEE WAS VERY WELL CONSIDERED BY THE AO. THEREFORE, THE NOTICE ISSUED U/S. 147 DOES NOT SATISFY THE LEGAL C ONDITION LAID IN FIRST PROVISO TO SECTION 147 OF THE ACT AND HENCE, WE FIN D MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND ALLOW THE ASSESSEE S APPEAL. :-4-: ITA NO.1152/CHNY/2019 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED . ORDER PRONOUNCED ON 17 TH FEBRUARY, 2020 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER SD/- ( ! ) (S. JAYARAMAN) ' /ACCOUNTANT MEMBER /CHENNAI, / /DATED: 17 TH FEBRUARY, 2020 JPV '#+0121.+ /COPY TO: 1. %& / APPELLANT 2. #$%& /RESPONDENT 3. * 3+ ) ( /CIT(A) 4. * 3+ /CIT 5. 14#+ /DR 6. 567 /GF