Gemini Industries and Imaging Limited, CHENNAI V. DCIT, CHENNAI

ITA 1255/CHNY/2014

• Counselvise Citation: 125521714 RSA 2014
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PATHLAVATH PEERYA
• Assessee Lawyers: ANIL NAIR
• Keywords: Sale consideration of property below Jantri Value
• Section: 263; 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1255/MDS/2014 ' (' / ASSESSMENT YEAR : 2009-10 M/S GEMINI INDUSTRIES AND IMAGING LIMITED, NO.28, NEW BANGARU COLONY, K.K. NAGAR, CHENNAI 600 028. PAN : AAACG 7890 H V. THE COMMISSIONER OF INCOME TAX, CHENNAI-IV, CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. ANIL NAIR, CA ,-*+ . / / RESPONDENT BY : SH. PATHLAVATH PEERYA, CIT 0 . 1$ / DATE OF HEARING : 07.04.2015 2!( . 1$ / DATE OF PRONOUNCEMENT : 10.04.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX-IV, CHENNAI, DATED 2 6.03.2014, 2 I.T.A. NO.1255/MDS/14 PASSED UNDER SECTION 263 OF THE INCOME-TAX ACT, 196 1 (IN SHORT 'THE ACT'). 2. SHRI ANIL NAIR, LD. REPRESENTATIVE OF THE ASSESS EE, SUBMITTED THAT THOUGH THE ASSESSEE HAS RAISED AS MANY AS THRE E GROUNDS, VIZ. INTEREST PAYMENT TO MRS. INDRA ANAND, APPLICABILITY OF SECTION 50C OF THE ACT AND THE EXPENDITURE CLAIMED UNDER SECTION 3 5D OF THE ACT, THE ONLY GRIEVANCE NOW REMAINS TO BE ADJUDICATED IS THE EXPENDITURE CLAIMED BY THE ASSESSEE UNDER SECTION 35D OF THE AC T. REFERRING TO PROVISIONS OF SECTION 35D OF THE ACT, THE LD. REPRE SENTATIVE SUBMITTED THAT THE ASSESSEE HAS MERITORIOUS CASE FO R CLAIMING DEDUCTION UNDER SECTION 35D OF THE ACT. ON A QUERY FROM THE BENCH WHETHER THE ASSESSING OFFICER CONSIDERED THE CLAIM OF THE ASSESSEE UNDER SECTION 35D OF THE ACT, THE LD. REPR ESENTATIVE CLARIFIED THAT THE ASSESSMENT ORDER IS SILENT ON TH IS ASPECT. ACCORDING TO LD. REPRESENTATIVE, IT IS FOR THE ASSE SSING OFFICER TO DISCUSS THE MATTER ONE WAY OR OTHER, THE FAILURE OF THE ASSESSING OFFICER TO DISCUSS THE ISSUE RAISED CANNOT BE A GRO UND FOR EXERCISING REVISIONAL JURISDICTION BY THE COMMISSIONER. ACCOR DING TO LD. REPRESENTATIVE, AS FAR AS THE ASSESSEE IS CONCERNED , IT HAS FILED ALL THE DETAILS REQUIRED BY THE ASSESSING OFFICER DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS. 3 I.T.A. NO.1255/MDS/14 3. WE HEARD SHRI PATHLAVATH PEERYA, LD. DEPARTMENTA L REPRESENTATIVE ALSO. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. ADMITTEDL Y, THE ASSESSMENT ORDER IS SILENT WITH REGARD TO CLAIM MAD E BY THE ASSESSEE UNDER SECTION 35D OF THE ACT. THE ASSESSM ENT PROCEEDING BEFORE THE ASSESSING OFFICER IS A JUDICI AL PROCEEDING UNDER SECTION 136 OF THE ACT. THEREFORE, THE ASSES SMENT ORDER SHALL REFLECT THE APPLICATION OF MIND BY THE ASSESS ING OFFICER. THE ASSESSING OFFICER ONE WAY OR OTHER DISCUSSES THE MA TTER FOR ALLOWING OR DISALLOWING THE CLAIM OF THE ASSESSEE. UNLESS THE REASONS FOR ALLOWING OR DISALLOWING THE CLAIM OF TH E ASSESSEE ARE RECORDED IN THE ASSESSMENT ORDER ITSELF, THE APPELL ATE/REVISIONAL AUTHORITY MAY NOT BE ABLE TO APPRECIATE THE REASONS FOR ALLOWING OR DISALLOWING THE CLAIM OF THE ASSESSEE BY THE ASSESS ING OFFICER. THEREFORE, THE VERY PURPOSE OF PROVIDING APPELLATE/ REVISIONAL REMEDY UNDER THE INCOME-TAX ACT WOULD BE DEFEATED. 5. MOREOVER, WHETHER IT IS A JUDICIAL ORDER OR AN ADMINISTRATIVE ORDER, THE REASON FOR CONCLUSION SHALL CONTAIN IN T HE ORDER ITSELF. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT REASON FOR THE CONCLUSION ARRIVED 4 I.T.A. NO.1255/MDS/14 IN A JUDICIAL/ADMINISTRATIVE ORDER CANNOT BE SUBSTI TUTED BY WAY OF FILING ADDITIONAL DOCUMENT OR AFFIDAVIT IN APPELLAT E OR REVISIONAL PROCEEDING. IN OTHER WORDS, THE REASON SHALL BE CO NTAINED IN THE ORDER ITSELF. 6. THE REASON RECORDED IN THE ASSESSMENT ORDER WOUL D BE THE LIVE LINK BETWEEN THE ORDER AND THE OFFICER WHO IS PASSING THE ORDER. REQUIREMENT OF RECORDING REASON IN THE ORDER WOULD REMOVE THE ARBITRARINESS IN DECISION MAKING PROCESS. IN THIS CASE, ADMITTEDLY, NO SUCH REASONS WERE RECORDED. THEREFORE, THIS TRI BUNAL IS OF CONSIDERED OPINION THAT THE ASSESSMENT ORDER IS NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO THE INTERESTS OF REVENUE. THIS VIEW OF THE TRIBUNAL IS FORTIFIED BY THE JUDGMENT OF THE CONSTI TUTIONAL BENCH OF THE APEX COURT IN MUKHERJEE V. UNION OF INDIA 1990 AIR SC 1984 AND IN TOYOTA MOTOR CORPORATION V. CIT (2008) 306 I TR 52 (SC). THE COMMISSIONER HAS SIMPLY SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND DIRECTED TO PASS AN ORDER DE NOVO AFTER CONDUCTING PROPER ENQUIRY. THEREFORE, THIS TRIBUNAL IS OF CON SIDERED OPINION THAT THE ASSESSEE MAY NOT HAVE ANY GRIEVANCE AT ALL . IT IS FOR THE ASSESSEE TO PLACE ALL THE MATERIAL BEFORE THE CONCE RNED ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER ALL T HE MATERIALS THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN 5 I.T.A. NO.1255/MDS/14 ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY THE OBSERVATION MADE BY THE COMMISSIONER IN THE IMPUGNED ORDER. 7. WITH THE ABOVE OBSERVATION, THE ORDER OF THE COM MISSIONER IS CONFIRMED. THE APPEAL OF THE ASSESSEE STANDS DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 10 TH APRIL, 2015 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) (. !' ) ( . . . ) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 10 TH APRIL, 2015. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 /CIT, CHENNAI-IV, CHENNAI 4. 69 ,1 /DR 5. :' ; /GF.