M/s. Thirumalai Designs, Tiruppur V. ITO, Tiruppur

ITA 1460/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57898 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-02-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 25-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reasonable cause
• Section: 68; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 1460/MDS/2011 ASSESSMENT YEAR : 2004-05 M/S. THIRUMALAI DESIGNS, NO. 16A, TEACHERS COLONY, ANGERIPALAYAM ROAD, TIRUPUR. V. THE INCOME TAX OFFICER, WARD-I(3), TIRUPUR. (PAN: AACFT0871A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T. BANUSEKAR, CA RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 06-02-2012 DATE OF PRONOUNCEMENT : 06- 02-2012 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A PPEALS)-II, COIMBATORE IN IT APPEAL NO. 384C/09-10 DATED 23/06/2011 FOR THE ASSE SSMENT YEAR 2004-05. 2. SHRI T. BANUSEKAR, CA REPRESENTED ON BEHALF OF T HE ASSESSEE AND SHRI SHAJI P. JACOB, LEARNED SR. DR REPRESENTED ON BEHAL F OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LEARNED AUTHORISED REPRE SENTATIVE THAT THE ISSUE IN THIS APPEAL WAS THREE-FOLD. IT WAS SUBMITTED TH AT THE FIRST ISSUE WAS AGAINST THE ORDER OF THE LEARNED CIT(A) IN NOT ENTERTAINING THE LEGALITY OF THE RE- ASSESSMENT PROCEEDINGS, THE SECOND ISSUE WAS AGAINS T THE ACTION OF THE LEARNED CIT(A) IN HOLDING THAT THE CAPITAL CONTRIBUTION OF THE PARTNERS IS ASSESSABLE AS I.T.A. NO.1460/MDS/2011 2 INCOME U/S 68 OF THE INCOME TAX ACT, 1961 IN THE HA NDS OF THE FIRM IN SPITE OF THE FACT THAT ALL THE PARTNERS EXCEPT ONE WERE ASSE SSED TO INCOME-TAX AND THE THIRD BEING THE DISALLOWANCE OF EXPENDITURE. IT WA S THE SUBMISSION THAT THE ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT ON 28.0 9.2006. IT WAS THE SUBMISSION THAT THIS ORDER WAS SUBJECT MATTER OF AP PEAL BEFORE THE TRIBUNAL WHO HAD RESTORED THE ISSUES TO THE FILE OF THE LEARNED CIT(A) FOR RE-ADJUDICATION. IT WAS THE SUBMISSION THAT IN THE SET ASIDE PROCEEDING S THE LEARNED CIT(A) HAD REFUSED TO ENTERTAIN THE GROUND IN REGARD TO THE RE -OPENING HOLDING THAT IT WAS A FRESH GROUND TAKEN IN THE APPEAL. ON MERITS IT WAS SUBMITTED THAT THE LEARNED CIT(A) HAD HELD THAT AS THE ASSESSEE HAD BEEN GIVEN ADEQUATE OPPORTUNITY BY THE ASSESSING OFFICER AND THE ASSESSEE HAD NOT PROD UCED ANY EVIDENCE BEFORE THE ASSESSING OFFICER, THE EVIDENCES COULD NOT BE E NTERTAINED. IT WAS SUBMITTED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT HE HA D NO OBJECTION IF ALL THE ISSUES WERE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION SO THAT THE ASSESSEE MAY BE ABLE TO PRODUCE ALL THE EVIDENCES B EFORE THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE REASON FOR THE ORIGI NAL ASSESSMENT BEING PASSED EX PARTE WAS EXPLAINED BEFORE THE TRIBUNAL IN THE ORIGINAL APPEAL FILED BEFORE THE TRIBUNAL AND THE TRIBUNAL IN ITS ORDER IN ITA NO. 1 457/MDS2008 DATED 22-04- 2009 HAD ACCEPTED THE REASONABLE CAUSE WHEN IT COND ONED THE DELAY IN FILING THE APPEAL. I.T.A. NO.1460/MDS/2011 3 4. IN REPLY, THE LEARNED DR SUBMITTED THAT HE HAD N O OBJECTION IF THE ISSUES WERE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE TRIBUNAL HAS IN ITS ORDER IN ITA NO.1457/MDS/2008 D ATED 22-04-2009 ACCEPTED THE CONTENTION OF THE ASSESSEE FOR THE NON-PRODUCTI ON OF ALL THE DETAILS BEFORE THE ASSESSING OFFICER, THE LEARNED CIT(A) OUGHT TO HAVE GRANTED THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CLAIMS MAD E BEFORE HIM. HOWEVER, IT IS NOTICED THAT THE ASSESSEE HAS NOT BEEN GRANTED JUST ICE INSOFAR AS HE HAS NOT BEEN GIVEN AN OPPORTUNITY TO SUBSTANTIATE AND PRODU CE EVIDENCES. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUES I N THIS APPEAL WOULD HAVE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR R E-ADJUDICATION AND WE DO SO. THE ASSESSING OFFICER SHALL RE-ADJUDICATE ALL THE I SSUES INCLUDING THE ISSUE OF RE- OPENING IF CHALLENGED BEFORE HIM AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO PRODUCE ALL SUCH EVIDENCES AS REQUIR ED. IN THE CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. THE ORDER WAS PRONOUNCED IN THE COURT ON 06-02-201 2. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 06 TH FEBRUARY, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE