ACIT, CHENNAI V. Pradeep Selvam, CHENNAI

ITA 148/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4452 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 18-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO. 148/MDS/2017 / ASSESSMENT YEAR : 2013-14 THE ASSTT. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-15, CHENNAI. V. SHRI PRADEEP SELVAM, E-159, USAHA NIVAS, 7 TH AVENUE, BESANT NAGAR, CHENNAI 600 090. PAN: AALPR8961Q ( ! /APPELLANT) ( '# ! /RESPONDENT) ! $ /APPELLANT BY : SHRI SASI KUMAR, JCIT '# ! $ /RESPONDENT BY : SHRI Y. SRIDHAR, CA $ /DATE OF HEARING : 19.04.2017 $ /DATE OF PRONOUNCEMENT : 31.05.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-15, CHENNAI DAT ED 22.09.2016 AND PERTAINS TO THE ASSESSMENT YEAR 2013-14. 2. THERE WAS A DELAY OF 36 DAYS IN FILING THIS APPEAL BY THE REVENUE. THE REVENUE HAS FILED A PETITION FOR CONDONATION OF DELAY. WE HAVE HEARD THE LD. REPRESENTATIVE FOR THE ASSESSEE AND T HE LD. DEPARTMENTAL 2 I.T.A. NO. 148/MDS/2017 REPRESENTATIVE. WE FIND THAT THERE WAS SUFFICIENT C AUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE C ONDONE THE DELAY AND ADMIT THE APPEAL. 3. SHRI SASIKUMAR, THE LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THE CIT(APPEALS) PRIMA FACIE FOUND THAT THE ASSESSE E IS ELIGIBLE FOR DEDUCTION U/S.54F OF THE INCOME TAX ACT, 1961 (IN SH ORT THE ACT). HOWEVER WITHOUT DECIDING THE ISSUE BY HIMSELF HE FO UND THAT THAT THE ASSESSEE HAS FILED CERTAIN MATERIAL EVIDENCE WHICH WAS NOT FILED BEFORE THE ASSESSING OFFICER, THEREFORE HE DIRECTED THE AO TO EXAMINE THE SAME AFRESH AND GRANT DEDUCTION U/S.54F OF THE ACT. REFE RRING TO SECTION 251(1) OF THE ACT, THE LD. DR SUBMITTED THAT THE CI T(APPEALS) HAS NO POWER TO SET ASIDE THE ORDER OF ASSESSMENT. AT THE BEST, THE CIT(APPEALS) MAY CONFIRM THE ORDER OF THE AO OR REDUCE OR ENHANC E OR ANNUL THE ASSESSMENT. IN THIS CASE, THE CIT(APPEALS) EXCEEDE D HIS JURISDICTION IN SETTING ASIDE THE ORDER OF ASSESSMENT. 4. REFERRING TO RULE 46A OF INCOME TAX RULES, 1961, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS FILED NEW MATERIAL EVIDENCE TO HIM. HE OUGHT TO HAVE GIVEN AN OPPORTUNITY TO THE AO TO EXA MINE THE SAME WITH REGARD TO CONTENTS OF SUBJECT MATERIAL EVIDENCE. I N THIS CASE, NO SUCH OPPORTUNITY WAS ALSO GIVEN TO THE AO. THEREFORE THER E IS A CLEAR VIOLATION OF RULE 46A OF THE INCOME TAX RULES. 3 I.T.A. NO. 148/MDS/2017 5. ON THE CONTRARY, SHRI SRIDHAR, THE LD. REPRESENT ATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED CERTAIN FRESH MATERIAL TO SUPPORT THE CLAIM OF DEDUCTION U/S.54F OF THE ACT. THEREFORE THE CIT(APPEALS) FOUND THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.54F OF THE ACT. HOWEVER SINCE THE EVIDENCE FILED BY THE ASSESSEE IS NOT AVA ILABLE BEFORE THE AO, HE DIRECTED THE AO TO VERIFY THE MATERIAL EVIDENCE FILED BY THE ASSESSEE AND GRANT DEDUCTION U/S.54F OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESS EE CLAIMED DEDUCTION U/S.54F OF THE ACT WHICH WAS DENIED BY THE AO. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) ON THE BASIS OF FRESH MATERIAL FILED BEFORE HIM, FOUND THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCT ION U/S.54F OF THE ACT. HOWEVER HE DIRECTED THE AO TO VERIFY THE MATERIAL E VIDENCE FILED BEFORE HIM FOR THE FIRST TIME AND GRANT DEDUCTION. WE CAR EFULLY GONE THROUGH THE PROVISIONS OF SEC. 251(1) OF THE ACT. THE POWER TO SET ASIDE THE ORDER OF ASSESSMENT WAS NOT AVAILABLE WITH CIT(APPEALS). AS RIGHTLY SUBMITTED BY THE LD.DR, CIT(APPEALS) AT THE BEST, MAY CONFIRM OR REDUCE OR ENHANCE THE ASSESSMENT. THE CIT(APPEALS) ON THE BASIS OF TH E MATERIAL EVIDENCE FILED BY THE ASSESSEE MAY CALL FOR A REMAND REPORT FROM THE AO AND HE CAN DECIDE THE CLAIM OF DEDUCTION U/S.54F OF THE AC T ON MERIT. UNFORTUNATELY, THE CIT(APPEALS) HAS NOT DONE SO. TH E CIT(APPEALS) HAS DIRECTED THE AO TO EXAMINE THE FRESH MATERIAL FILED BY THE ASSESSEE AND 4 I.T.A. NO. 148/MDS/2017 THEREAFTER GIVE DEDUCTION U/S.54F OF THE ACT. IN V IEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDER OF CIT(APPEALS) IN DIRECTING THE AO TO VERIFY THE CLAIM AND GRANT DEDU CTION U/S.54F OF THE ACT IS NOT JUSTIFIED. HOWEVER, THE NEW MATERIAL FILED BY THE ASSESSEE NEEDS TO BE EXAMINED BY THE AO. ACCORDINGLY WHILE SETTING AS IDE THE ORDER OF THE CIT(APPEALS), THE ENTIRE ISSUE IS REMITTED BACK TO T HE FILE OF THE AO. THE AO SHALL RE-EXAMINE THE MATERIAL AFRESH IN THE LIGH T OF THE MATERIAL EVIDENCE FILED BEFORE THE CIT(APPEALS) AND THEREAFT ER DECIDE THE CLAIM OF DEDUCTION U/S.54F OF THE ACT IN ACCORDANCE WITH LAW , AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 31 ST MAY, 2017 AT CHENNAI. SD/- SD/- ( . . ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESA N) /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, /DATED, THE 31 ST MAY, 2017. JR. /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. !' /DR 6. #$ /GF