V.Rathinasekar, Trichy V. ITO, Trichy

ITA 1206/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8138 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R. DURAI PANDIAN
• Keywords: Additional evidence
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 43

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.1206/MDS/2015 ( / ASSESSMENT YEAR: 2008-09) MR. V.RATHINASEKAR, 3, PREMIER FLATS, KARUR BYE PASS ROAD, TRICHY-2. VS INCOME TAX OFFICER, WARD-I(2), TRICHY. PAN:ADCPR3089H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. B.RAMANAKUMAR, ADVOCATE /RESPONDENT BY : MR.R.DURAIPANDIAN, SR.AR /DATE OF HEARING : 2 ND JANUARY, 2017 /DATE OF PRONOUNCEMENT : 5 TH JANUARY, 2017 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- I, TIRUCHIRAPALLI DATED 05.02.2015 IN ITA NO.69/201 4-15 /CIT(A)/TRY PASSED UNDER SECTION 143(3) R.W.S. 254 & 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HIS A PPEAL, HOWEVER THE CRUXES OF THE ISSUES ARE AS FOLLOWS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF 2 ITA NO.1206 /MDS/2016 RS.2,22,042/- MADE BY THE LEARNED ASSESSING OFFICER TOWARDS UNPROVED CASH CREDITS. II) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.7,23,290/- MADE BY THE LEARNED ASSESSING OFFICER. III) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER WHEREIN HE HAD MADE ADDITION OF RS.30,00,000/- BEING PLOT ADVANCE RECEIVED NOT REFLECTED IN THE BOOKS OF ACCOUNTS. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS AS CONTRACTOR AN D ALSO IN REAL ESTATE BUSINESS FILED HIS RETURN OF INCOME ON 10.09.2008 ADMITTING INCOME OF RS.1,68,640/-. SUBSEQUENTLY, TH E ASSESSMENT WAS MADE UNDER SECTION 143(3) OF THE ACT AND THEREAFTER THE TRIBUNAL HAD REMITTED BACK THE MATTE R TO EXAMINE THE ISSUE AFRESH, BUT SINCE THE ASSESSEE FA ILED TO APPEAR BEFORE THE LEARNED ASSESSING OFFICER EX-PART E ORDER WAS PASSED UNDER SECTION 144 R.W.S 254 OF THE ACT ON 27.03.2014 AGAINST WHICH THE ASSESSEE FILED AN APPE AL AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) PA SSED HIS ORDER ON 05.02.2015 AGGRIEVED BY WHICH THE ASSE SSEE IS NOW IN APPEAL BEFORE US. 3 ITA NO.1206 /MDS/2016 4. AT THE OUTSET, THE LEARNED AUTHORIZED REPRESENTA TIVE ARGUED WITH RESPECT TO ADDITION MADE FOR RS.2,22,04 2/- BY REFERRING TO PAPER BOOK PAGE NO. 24, 34 AND 35 BY STATING THAT THE AFORESAID AMOUNT WAS ALREADY INCLUDED AS C ONTRACT RECEIPTS AND ACCOUNTED IN THE BOOKS OF ACCOUNTS. TH EREFORE, IF THE AMOUNT IS ONCE AGAIN ADDED TO THE INCOME OF THE ASSESSEE, IT WOULD AMOUNT TO DOUBLE TAXATION. HE FU RTHER AGREED FOR THE MATTER TO BE REMITTED BACK TO THE FI LE OF THE LEARNED ASSESSING OFFICER FOR FRESH EXAMINATION. W ITH RESPECT TO THE ADDITION OF RS.7,23,290/- THE LEARNE D AUTHORIZED REPRESENTATIVE REFERRED TO PAGE 35 OF TH E PAPER BOOK AND STATED THAT THE BANK PASS BOOK AND BOOKS OF ACCOUNTS ARE RECONCILED AND THEREFORE, THE ADDITION IS NOT WARRANTED. HE FURTHER REQUESTED THAT THE MATTER MA Y BE REMITTED BACK FOR VERIFICATION. SIMILARLY, WITH RES PECT TO THE ADDITION OF RS.30.00 LAKHS THE LEARNED AUTHORIZED REPRESENTATIVE REFERRED TO PAGE 43 OF THE PAPER BOO K, WHEREIN THE AMOUNT OF RS.30.00 LAKHS WAS DISCLOSED AS ADVANCES MADE IN THE BOOKS OF ACCOUNTS OF M/S. R.GO MATHI, WIFE OF MR.RATHINASEKAR (ASSESSEE) AND SHE HAD FILE D HER 4 ITA NO.1206 /MDS/2016 RETURN OF INCOME WITHIN THE DUE DATE. IT WAS FURTHE R SUBMITTED THAT THE AMOUNT OF RS.30 LACKS WAS PAID FROM THE JO INT BANK ACCOUNT OF THE ASSESSEE AND HIS WIFE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND STOUTLY OBJECTED TO THE SUBMISSIONS OF THE LEA RNED AUTHORIZED REPRESENTATIVE AND PLEADED FOR CONFIRMIN G THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) BECAUSE THE ASSESSEE HAD NOT CO-OPERATED WITH THE R EVENUE ON THE EARLIER OCCASIONS AND REMITTING BACK THE MAT TER ONCE AGAIN WILL ONLY LEAD TO WASTE OF TIME. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE, IT IS APPARENT THAT THE ASSESSEE WAS NOT CO-OPERATING WITH THE REVENUE ON THE EARLIER OCCASIONS. HOWEVER, ON THE P RIMA- FACIE EXAMINATION OF THE PAPER BOOK SUBMITTED BY TH E ASSESSEE, THERE APPEARS TO BE SOME MERIT IN THE SUB MISSION OF THE LEARNED AUTHORIZED REPRESENTATIVE. THEREFORE , IN THE INTEREST OF JUSTICE, WE REMIT BACK THE ENTIRE MATTE R TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR DE NOVO CONSIDERA TION. WE 5 ITA NO.1206 /MDS/2016 ALSO MAKE IT CLEAR THAT THE ASSESSEE SHALL BE AT LI BERTY TO SUBMIT ANY ADDITIONAL EVIDENCE IN SUPPORT OF HIS CL AIM BEFORE THE REVENUE AND AT THE SAME TIME WE HEREBY ALSO DIR ECT THE ASSESSEE TO CO-OPERATE WITH THE REVENUE IN THEIR PROCEEDINGS IN ORDER TO EXPEDITE THEIR ORDERS FAILI NG WHICH THE REVENUE SHALL BE AT LIBERTY TO PASS APPROPRIATE ORD ERS AS PER MERIT & LAW BASED ON THE AVAILABLE MATERIALS ON REC ORDS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 5 TH JANUARY, 2017 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 05.01. 2017 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF