Dr.K.Neminathan, Coimbatore V. DCIT, Coimbatore

ITA 1496/CHNY/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8839 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 16-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 23-06-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH J
• Assessee Lawyers: A ARJUNRAJC A
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI ., ! '#$ . # % & ! ' BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.1495/MDS./2015 / ASSESSMENT YEAR :2007-08 DR.K.C.RAMASWAMI, NEW NO.67,OLD NO.34-A, 2 ND STREET, DR.JAGANNATHAN NAGAR, CIVIL AERODROME, COIMBATORE 641 014. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, COIMBATORE. [PAN ACQPR 8376 Q ] ( () / APPELLANT) ( *+() /RESPONDENT) ./ I.T.A.NOS.1496 TO 1499/MDS./2015 / ASSESSMENT YEARS :2005-06, 2006-07, 2007-08 & 2010 -11 DR.K.NEMINATHAN, 1/1,NEW STREET, KONGU NAGAR, RAMANATHAPURAM, COIMBATORE 641 045. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, COIMBATORE. [PAN AAGPN 1322 C ] ( () / APPELLANT) ( *+() /RESPONDENT) ./ I.T.A.NO.1500 & 2133/MDS./2015 / ASSESSMENT YEAR :2010-11 & 2006-07 DR.MALLIKA NEMINATHAN, 1/1,NEW STREET, KONGU NAGAR, RAMANATHAPURAM, COIMBATORE 641 045. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, COIMBATORE. [PAN AAGPN 8971 K ] ( () / APPELLANT) ( *+() /RESPONDENT) ITA NO.1495 TO 1500 & 2133 /MDS./2015 :- 2 -: / APPELLANT BY : MR.A.ARJUNRAJ,C.A /RESPONDENT BY : MR.A.V.SREEKANTH,JCIT,DR / DATE OF HEARING : 16 - 0 8 - 201 6 / DATE OF PRONOUNCEMENT : 19 - 0 8 - 2016 , / O R D E R PER BENCH THESE ARE THE APPEALS OF THREE ASSESSEES AS MENTI ONED ABOVE IN THE IMPUGNED ASSESSMENT YEARS ARE DIRECTED AGAINST DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-18, CHENNAI . 2. ALL THE ASSESSMENTS GIVING RISE TO THESE APPEAL S HAVE ITS GENESIS ON A SEARCH CONDUCTED U/S.132 OF THE INCOME TAX ACT , 1961 (IN SHORT `ACT) AT RESIDENTIAL PREMISES ON 22.09.2010 AT THE RESIDENTIAL PREMISES OF DR.K.NEMINATHAN, PEDIATRIC SPECIALIST AND MANAGI NG DIRECTOR OF MULTI-SPECIALTY HOSPITAL CALLED M/S.COIMBATORE CHIL D TRUST HOSPITAL (P) LTD., AND SURVEY DONE IN THE SAID HOSPITAL U/S.133A OF THE ACT. ALL THE ASSESSEES HAVE RAISED THE FOLLOWING COMMON ADDITION AL GROUND IN THESE APPEALS. 4. THE FOLLOWING IS THE ADDITIONAL GROUND FOR WHIC H PRAYER FOR GRANT OF LEAVE UNDER RULE 11 IS SOUGHT. I. WHEN THERE WAS NO ASSESSMENT PENDING AND WHEN TH ERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH THE NOTICE ISSUED U/S 153A AND THE CONSEQUEN T ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW. ITA NO.1495 TO 1500 & 2133 /MDS./2015 :- 3 -: 3. THE LEARNED COUNSEL OF THE ASSESSEE SEEKING THE ADMISSION OF THE ADDITIONAL GROUND SUBMITTED THAT THE ASSESSMENT S DONE FOR THE IMPUGNED ASSESSMENT YEAR ON THE ASSESSEES WERE NOT BASED ON ANY INCRIMINATING MATERIAL SEIZED AT THE TIME OF SEARCH , BUT WAS ONLY BASED ON MATERIAL IMPOUNDED AT THE TIME OF SURVEY. AS PE R LD.A.R, THE GROUND RAISED WAS A PURELY LEGAL ONE AND ONE THAT C OULD BE DECIDED ON FACTS AVAILABLE ON RECORDS. ACCORDING TO HIM, A LE GAL GROUND COULD BE RAISED AT ANY STAGE OF THE PROCEEDINGS AND HAD TO B E ADMITTED. 4. PER CONTRA, LD.D.R OPPOSING THE ADMISSION OF TH E ADDITIONAL GROUNDS SUBMITTED THAT SUCH ISSUE, THOUGH LEGAL, WA S NEVER RAISED BY THE ASSESSEE BEFORE THE LD.CIT(A) DURING THEIR APPE LLATE PROCEEDINGS. ACCORDING TO HIM, UNLESS AND UNTIL THE CIT(A) DECID ED THE ISSUE RAISED BY THE ASSESSEE, THIS TRIBUNAL SHOULD NOT ADJUDICAT E IT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS ADMITTED BY BOTH PARTIES THAT THE GROUND RAISED BY THE ASSESSEE IS A PURELY LEGAL ONE. HOWEVER, WE ALSO FI ND THAT NO SUCH GROUND WAS RAISED BY THE ASSESSEES IN THEIR APPEAL S BEFORE THE LD.CIT(A). EVEN THOUGH IT MAY BE TRUE THAT THE FAC TS NECESSARY FOR ADJUDICATING THESE GROUNDS ARE AVAILABLE ON RECORD, IT MAY BE INAPPROPRIATE FOR US TO TAKE UP THE ISSUE FOR THE F IRST TIME, SINCE NO SUCH ISSUE WAS RAISED BY THE ASSESSEE EITHER BEFOR E THE LD. ASSESSING OFFICER OR BEFORE THE LD.CIT(A). THEREFORE, WE ARE OF THE OPINION THAT ITA NO.1495 TO 1500 & 2133 /MDS./2015 :- 4 -: THIS LEGAL GROUND HAS TO BE ADJUDICATED BY THE CIT( A). WE THEREFORE, SET ASIDE THE ORDERS OF THE LD.CIT(A) FOR ALL THE A SSESSEES FOR THE IMPUGNED ASSESSMENT YEARS AND REMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE TO THE FILE OF LD.CIT(A) FOR DISPOSAL IN ACCORDANCE WITH LAW. 6. NEEDLESS TO SAY, ALL THE OTHER ISSUES RAISED BY THE ASSESSEE SHALL REMAIN OPEN. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEES AS MENTIONED AGAINST THE ASSESSMENT YEARS IN THE TITLE ARE PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19 TH AUGUST, 2016, AT CHENNAI. SD/ - SD/ - ( ! . ' ) ( G.PAVAN KUMAR ) & ! / JUDICIAL MEMBER ( #$%&' ' !(! ) ( ABRAHAM P GEORGE ) ! / ACCOUNTANT MEMBER )* / CHENNAI +, / DATED: 19 TH AUGUST, 2016 K S SUNDARAM ,-$$ ./$0/ / COPY TO: $ 1 . / APPELLANT 3. $ 1$23 / CIT(A) 5. /45$ 6 / DR 2. / RESPONDENT 4. $ 1 / CIT 6. 57$8 / GF