K.Ananthan, CHENNAI V. DCIT, CHENNAI

ITA 1548/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6440 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANN MARY BA
• Assessee Lawyers: G GANESH BABU
• Section: 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI ... , , $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A. NO. 1548/MDS/2016 / ASSESSMENT YEAR : 2006-07 SHRI K. ANANTHAN, 37/9, SURESH NAGAR MAIN ROAD, JANAKI NAGAR, VALASARWAKKAM, CHENNAI 600 087. [PAN: AICPA 2670C] VS. DEPUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION-I, 121, MAHATMA GANDHI ROAD, AAYAKAR BHAVAN, ROOM NO. 706, ANNEXE BUILDING, VII FLOOR, CHENNAI 600 034. ( / APPELLANT) ( / RESPONDENT) & ' / APPELLANT BY : SHRI. G. GANESH BABU *+& ' / RESPONDENT BY : MRS. ANN MARY BABY, JCIT ' /DATE OF HEARING : 24.05.2017 ' /DATE OF PRONOUNCEMENT : 08.08.2017 /O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNAI IN ITA NO. 38/A-16/AY 2006-07 DATED 29.02.2016. :-2-: I.T.A. N0. 1548/MDS/2016 2. SHRI K. ANANTHAN, THE ASSESSEE, IS A NON-RESIDEN T INDIVIDUAL HAVING INCOME FROM HOUSE PROPERTY, CAPITAL GAINS AN D OTHER SOURCES IN INDIA APART FROM HIS OVERSEAS EARNINGS. HE FILED HIS RET URN FOR ASSESSMENT YEAR 2006-07 ON 27.09.2006 DECLARING TOTAL INCOME OF RS. 36,75,707/-. THIS RETURN WAS PROCESSED U/S. 143(1). THE AO RECEIVED INFORMA TION THAT DURING FINANCIAL YEAR 2005-06, THE ASSESSEE PURCHASED THE PROPERTY ( KALYANAMANDAPAM) AT AMBUR FOR A CONSIDERATION OF RS. 50 LAKHS. HOWEVER , THE DOCUMENTED VALUE AS PER DOCUMENT NO. 2698/2005 DATED 29.08.2005 WAS AT RS. 74,62,175/-. THE AO RE-OPENED THE ASSESSMENT, REQUIRED THE ASSES SEE TO EXPLAIN THE SOURCES FOR THE PURCHASE OF PROPERTY AND WHEN THE A SSESSEE COULD NOT EXPLAIN WITH EVIDENCE, THE AO MADE AN ADDITION OF RS. 74,62 ,175/- U/S. 69. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) DISMISSED THE APPEAL. 3. AGGRIEVED AGAINST THE CIT(A) ORDER, THE ASSESSEE FILED THIS APPEAL. PRIMARILY ON THE GROUND THAT 2. THE CIT(A) ERRED IN NOT ADJUDICATING ON THE GRO UND RAISED IN THE WRITTEN SUBMISSIONS DATED 22.01.2016 AND 25. 01.2016, WHEREIN, A. VALIDITY OF THE RE-OPENING OF U/S. 147 WITHOUT GETTING THE APPROVAL OF THE JOINT DIRECTOR/JOINT CO MMISSIONER OF INCOME TAX AS REQUIRED UNDER SEC 151 OF THE IT A CT AND B. NON-FORMING OF INDEPENDENT OPINION FOR CONCLUDING THAT INCOME HAS ESCAPED ASSESSMENT WAS R AISED. :-3-: I.T.A. N0. 1548/MDS/2016 3. WITHOUT PREJUDICE TO THE ABOVE, THE CIT(A) OUGH T TO HAVE HELD THAT THE ASSESSMENT RE-OPENED BY THE LEARNED A O WITHOUT FORMING AN INDEPENDENT OPINION ON THE MATERIAL AVAILABLE BE FORE HIM IS VOID AB INITIO 4. WITHOUT PREJUDICE TO THE ABOVE THE CIT(A) OUGHT TO HAVE HELD THAT THE ASSESSMENT RE-OPENED, WITHOUT APPRECI ATING THE LAW OF THE LAND THAT STAMP DUTY COLLECTED BY THE REVENUE AUTHO RITIES CANNOT FORM FOUNDATION TO DETERMINE THE MARKET VALUE OF THE PRO PERTY AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF JAWAJEE NAGATH AN VS THE REVENUE DIVISIONAL OFFICER, ADIABAD, A.P CDJ 1994 SC 313, ( 1994) 4 SCC 595 IS VOID AB INITIO. 5. THE CIT(A) HAS ERRED IN NOT HOLDING THAT IN THE RE-OPENED ASSESSMENT ORDER PASSED BY THE AO IN WHICH HE HAS N EITHER DISCLOSED NOR DISCUSSED THE REASON FOR REOPENING THE ASSESSME NT IS FATAL TO THE PROCEEDINGS INITIATED U/S. 147 AND IS VOID AS INITI O. 6. THE CIT(A) HAS ERRED IN NOT HOLDING THAT IN THE RE-OPENED ASSESSMENT ORDER PASSED BY THE AO FROM WHICH IT IS EVIDENT THAT NOT OBTAINING THE SATISFACTION OF THE JOINT DIRECTOR OF INCOME TAX U/S. 152 FOR RE-OPENING THE ASSESSMENT, FATAL TO THE PROCEEDINGS INITIATED U/S. 147 AND IS VOID AB INITIO. 4. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDE RS. IT IS SEEN FROM THE PAPER BOOK THAT THE CIT(A) HAS ACKNOWLEDGE D THE ASSESSEES LETTERS DATED 22.02.2016 AND 25.03.2016. THEREIN, THE ASSE SSEE HAS RAISED THE VALIDITY OF ISSUE OF NOTICE U/S. 147 R.W.R. 151(2), VALIDITY OF RE-OPENING OF ASSESSMENT U/S. 148, THE AO ISSUED NOTICE WITHOUT A NY MATERIAL FOR CONFIRMING THE INDEPENDENT OPINION ETC. IT IS SEEN FROM THE O RDER OF THE CIT(A) THAT THE CIT(A) HAS NOT DEALT THESE ISSUES. IN THE FACTS AN D CIRCUMSTANCES, WE ARE OF :-4-: I.T.A. N0. 1548/MDS/2016 THE VIEW THAT THE CIT(A) ORDER HAS TO BE SET ASIDE FOR AN AFRESH CONSIDERATION. THE CIT(A) SHALL PASS A SPEAKING ORDER ON THE ISSUE S RAISED BY THE ASSESSEE IN HIS APPEAL INCLUDING THE ISSUES RAISED IN HIS LETTE RS DATED 22.02.2016 AND 25.01.2016, AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON TUESDAY, THE 08 TH DAY OF AUGUST, 2017 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) ! ' /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ' /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED: 08 TH AUGUST, 2017 JPV ' *23 43 /COPY TO: 1. &/ APPELLANT 2. *+& /RESPONDENT 3. 5 ( )/CIT(A) 4. 5 /CIT 5. 3 * /DR 6. 8 /GF