S.Nagendra Kumar, CHENNAI V. ITO, CHENNAI

ITA 1597/CHNY/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68616 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 16-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN JT
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER] I.T.A.NO.1597/MDS/2012 ASSESSMENT YEAR : 2007-08 SHRI S. NAGENDRA KUMAR C/O K.BALASUBRAMANIAN, B.COM.,B.L. ADVOCATE - TAX CONSULTANT FLAT NO.D-1, KRISHNA PARADISE, 4 TH FLOOR 6, RAMACHANDRA ROAD MYLAPORE, CHENNAI 600 004 VS THE INCOME TAX OFFICER BUSINESS WARD IV(1) CHENNAI [PAN AXVPS 8868 A] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. BALASUBRAMANIAN, ADVOCATE - TAX CONSULTANT RESPONDENT BY : SHRI N. MADHAVAN, JT. CIT DATE OF HEARING : 30-07-2013 DATE OF PRONOUNCEMENT : 06-08-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSES SEE AGAINST THE ORDER OF THE LD. CIT(A)-VIII, CHENNAI, DATED 22.2.2012. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 19.11.2007 SHOWING INCOME OF ` 1,69,760/-. FROM THE INFORMATION FURNISHED IN AIR, THE ASSESSIN G OFFICER CAME TO I.T.A.NO.1597/12 :- 2 -: KNOW THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF ` 10,61,000/- IN SAVINGS BANK ACCOUNT WITH HDFC BANK. NOTICES U/ S 143(2) AND 142(1) WERE ISSUED AND SERVED ON THE ASSESSEE BY A FFIXTURE. AS THERE WAS NO COMPLIANCE TO THE NOTICES, ORDER U/S 144 OF THE ACT WAS PASSED BY THE ASSESSING OFFICER BY ADDING ` 10,61,000/- AS UNEXPLAINED CASH DEPOSIT AND ADDITION OF ` 2,62,646/- BEING 10% OF THE REVENUE EXPENSES DISALLOWED IN ABSENCE OF PROOF . 3. THE ASSESSEE FILED APPEAL AGAINST THE SAID ORDER O F THE ASSESSING OFFICER BEFORE THE LD. CIT(A). THE LD. C IT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE APPE AL FILED BY THE ASSESSEE WAS BARRED BY LIMITATION OF 651 DAYS AND N O VALID AND SUFFICIENT REASONS WERE GIVEN FOR THE SAME. 4. THE LD. A.R OF THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE WHEREIN IT HAS BEEN STATED THAT HE RECEIVE D THE ASSESSMENT ORDER DATED 24.12.2009 ON 13.10.2011 WHEN HE MET TH E ASSESSING OFFICER IN RESPONSE TO NOTICE U/S 221(1) RECEIVED ON 8.10.2011 AT HIS PRESENT ADDRESS VIZ. NO.4/156, 4 TH MAIN ROAD, GARDEN WOODROOF NAGAR, OLD PALLAVARAM, CHENNAI. IT IS ALSO STATED IN THE AFFIDAVIT THAT THE ASSESSEE CLOSED HIS BUSINESS OF CLEARING AND F ORWARDING DUE TO HEAVY CUSTOMS LEVY AND DID NOT HAVE ANY TAXABLE IN COME AND THEREFORE, DID NOT FILE RETURN OF INCOME FOR ASSES SMENT YEARS 2008-09 AND 2009-10 AND SUBSEQUENT ASSESSMENT YEARS. FURTH ER IT IS ALSO I.T.A.NO.1597/12 :- 3 -: STATED THAT HE COULD NOT APPEAR BEFORE THE ASSESSIN G OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS HE WAS NOT AWAR E OF THE SERVICE OF NOTICES U/S 143(2) AND 142(1) ETC. OR EVEN THE S ERVICE OF ASSESSMENT ORDER U/S 144 AT HIS OLD ADDRESS EVEN T HOUGH HE HAD AUTHORIZED HIS CA TO RECEIVE ALL THE NOTICES ETC. O N HIS BEHALF. IT IS FURTHER STATED THAT IMMEDIATELY ON RECEIVING THE AS SESSMENT ORDER ON 13.1.2011 WITHIN ONE MONTH THEREFROM THE APPEAL WAS FILED BEFORE THE LD. CIT(A). IT IS THEREFORE, PRAYED IN THE SAID AF FIDAVIT THAT AS THE ASSESSEE HAD NOT RECEIVED THE STATUTORY NOTICES OR EX-PARTE ORDER SO PASSED, IT WOULD BE IN THE INTEREST OF JUSTICE TO A LLOW ONE MORE OPPORTUNITY TO PROVE THE CASH DEPOSIT IN THE BANK A CCOUNT WHICH WERE NOTHING BUT FROM HIS SALES, BY REMANDING THE MATTER TO THE ASSESSING OFFICER. 5. BOTH THE PARTIES BEFORE US AGREED THAT THE EX-PARTE ASSESSMENT ORDER U/S 144 OF THE ACT CAME TO BE PAS SED DUE TO NON- COMPLIANCE OF THE NOTICES U/S 143(2) AND 142(1) BY THE ASSESSEE AND THE ASSESSEE COULD NOT RECEIVE THE SAID NOTICES DU E TO CHANGE OF HIS ADDRESS AND THEREFORE, COULD NOT COMPLY WITH THE SA ME. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER BE RESTORED BAC K TO THE FILE OF THE ASSESSING OFFICER BY GRANTING ONE MORE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS RETURN OF INCOME. WE, THEREFORE, SET A SIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE I.T.A.NO.1597/12 :- 4 -: ASSESSING OFFICER TO REDO THE ASSESSMENT OF THE AS SESSEE AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE ASSE SSING OFFICER SUO MOTU WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDE R FOR FIXING THE DATE OF HEARING AND TO PRODUCE ALL EVIDENCES BEFORE THE ASSESSING OFFICER AS AND WHEN CALLED UPON TO DO SO. WITH THE SE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON TUESDAY, THE 06 TH OF AUGUST, 2013 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 06 TH AUGUST, 2013 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR