DCIT, CHENNAI V. Sheela Mohandas, CHENNAI

ITA 1687/CHNY/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5036 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RU GEORGE
• Assessee Lawyers: V S JAYAKUMAR
• Keywords: Opportunity of being heard; Documents seized
• Section: 143(3); 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ! ' ! # . $% , & ' BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.1683, 3071 & 3072/CHNY/2016 ( / ASSESSMENT YEARS: 2007-08, 2008-09 & 2010-11) THE DCIT, CENTRAL CIRCLE-1(1), CHENNAI - 34. VS SHRI K.V. MOHANDAS, CHOICE ELECTRIC COMPANY, S.M. PLAZA, GROUND FLOOR, SHOP NO.12, ARMENIAN STREET, CHENNAI 600 001. PAN: AAFPM2628D ( /APPELLANT) ( /RESPONDENT) & C.O. NO.174/CHNY/2016 ( IN ITA NO. 1683/CHNY/2016, ASSESSMENT YEAR 2007-08 ) SHRI K.V. MOHANDAS, CHOICE ELECTRIC COMPANY, S.M. PLAZA, GROUND FLOOR, SHOP NO.12, ARMENIAN STREET, CHENNAI 600 001. VS THE DCIT, CENTRAL CIRCLE-1(1), CHENNAI - 34. PAN: AAFPM2628D ( /APPELLANT) ( /RESPONDENT) & ./ I.T.A.NOS.1684 TO 1687 & 3089/CHNY/2016 ( / ASSESSMENT YEARS: 2005-06, 2008-09, 2009-10, 20 10-11, 2011-12) THE DCIT, CENTRAL CIRCLE-1(1), CHENNAI - 34. VS SMT. SHEELA MOHANDAS, NO.45, S.M. PLAZA, SHOP NO.12, ARMENIAN STREET, CHENNAI 600 001. PAN: AALPS4112N ( /APPELLANT) ( /RESPONDENT) & C.O. NOS.168 TO 171/CHNY/2016 ( IN ITA NOA. 1684 TO 1687/CHNY/2016) (ASSESSMENT YEARS 2005-06, 2008-09 TO 2010-11 ) SMT. SHEELA MOHANDAS, NO.45, S.M. PLAZA, SHOP NO.12, ARMENIAN STREET, CHENNAI 600 001. VS THE DCIT, CENTRAL CIRCLE-1(1), CHENNAI - 34. PAN: AALPS4112N ( /APPELLANT) ( /RESPONDENT) 2 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 89 : ; < /ASSESSEES BY : SHRI V.S. JAYAKUMAR, ADVOCATE /REVENUE BY : SMT. RUBY GEORGE, CIT : 9?@ /DATE OF HEARING : 06.06.2018 : 9?@ /DATE OF PRONOUNCEMENT : 20.06.2018 / O R D E R PER BENCH:- THESE APPEALS BY THE REVENUE IN RESPECT OF SHRI K.V . MOHANDAS ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-18, CHENNAI DA TED 11.03.2016 & 21.06.2016 IN ITA NO.150/14-15 & 151/2 014-15 FOR THE ASSESSMENT YEARS 2007-08 & 2008-09 RESPECTIVELY BOTH PASSED U/S.250(6) R.W.S. 153C & 153A OF THE ACT AND 21.06. 2016 IN ITA NO.153/2014-15 FOR THE ASSESSMENT YEAR 2010-11 PASS ED U/S.250(6) R.W.S. 143(3) OF THE ACT AND THE APPEALS IN RESPECT OF SMT. SEELA MOHANDAS ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-18, AL L DATED 11.03.2016 IN ITA NO.155/14-15, 158/14-15, 159/14- 15 & 160/14- 15 FOR THE ASSESSMENT YEARS 2005-06, 2008-09, 2009- 10 & 2010-11 RESPECTIVELY ALL PASSED U/S.250(6) R.W.S 153C & 153 A OF THE ACT 3 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 AND ITA NO.161/14-15 DATED 21.06.2016 FOR THE ASSES SMENT YEAR 2011-12 PASSED U/S.250(6) R.W.S. 143(3) & 148 OF TH E ACT. 2. THE ASSESSEE SHRI K.V. MOHANDAS HAS RAISED A C ROSS OBJECTION AGAINST THE ORDER OF THE LD.CIT(A) FOR TH E ASSESSMENT YEAR 2007-08. THE ASSESSEE SMT. SHEELA MOHANDAS HAS ALSO RAISED CROSS OBJECTIONS AGAINST THE ORDERS OF THE L D.CIT(A) FOR THE ASSESSMENT YEARS 2005-06, 2008-09, 2009-10 & 2010-1 1. 3. SINCE THE ISSUES INVOLVED IN ALL THE REVENUES APPEALS ARE IDENTICAL, THE REVENUES APPEALS AS WELL AS THE CRO SS OBJECTIONS OF BOTH THE ASSESSEES ARE TAKEN UP TOGETHER FOR HEARIN G AND DISPOSED OFF BY THIS COMMON ORDER. 4. THE CROSS OBJECTIONS WERE FILED BY THE ASSESSEE SMT. SHEELA MOHANDAS IN CO NOS.168 TO 171 OF 2016 FOR TH E ASSESSMENT YEARS 2005-06 & 2008-09 TO 2010-11 WITH A DELAY OF 141 DAYS. THE LD. AR SUBMITTED THAT THE DELAY HAD OCCURRED DUE TO THE OVERSIGHT OF THE COUNSEL OF THE ASSESSEE. IT WAS THEREFORE PLEADED THAT THE ASSESSEE MAY NOT BE PENALIZED FOR THE FAULT OF HER COUNSEL. THE LD. DR STRONGLY OBJECTED TO THE SUBMIS SION OF THE LD. 4 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 AR. AFTER HEARING BOTH SIDES, THOUGH WE DO NOT APPR ECIATE THE ARGUMENTS ADVANCED BY THE LD.AR, IN THE INTEREST OF JUSTICE, WE HEREBY CONDONE THE DELAY OF 141 DAYS IN FILING THE CROSS OBJECTION BY THE ASSESSEE AND PROCEED TO HEAR THE APPEALS ON MERITS. 5. THOUGH THE REVENUE HAS RAISED SEVERAL GROUNDS IN ITS APPEALS IN RESPECT OF THE ASSESSEES SHRI K.V. MOHA NDAS AND SMT. SHEELA MOHANDAS, THE CRUX OF THE ISSUE IS THAT THE LD.CIT(A) HAS ERRED IN HOLDING THAT ADDITIONS CAN BE MADE ONLY BA SED ON THE INCRIMINATING DOCUMENTS SEIZED DURING THE COURSE OF SEARCH WHILE ASSESSING THE INCOME U/S.153C / 153A OF THE ACT WHE N AS PER SECTION 153C /153A OF THE ACT THE LD.AO IS REQUIRED TO ASSESS THE TOTAL INCOME OF THE ASSESSEE FOR ANY RELEVANT ASSES SMENT YEAR AFRESH. RELIANCE WAS PLACED IN THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN ITA NO.38/2014 DATED 25.07. 2014 IN THE CASE M/S. CANARA HOUSING DEVELOPMENT COMPANY AND IN THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CA SE CIT VS. ST. FRANCIS CLAY DCOR TILES REPORTED IN 70 TAXMANN.COM 234. 6. THE IDENTICAL AND RELEVANT GROUND RAISED BY BOT H THE ASSESSEES IN THE CROSS OBJECTIONS IS THAT IN THE E VENT THE APPEAL 5 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 FILED BY THE REVENUE IS UPHELD ON JURISDICTION ISSU E U/S.153A OF THE ACT, THE ASSESSEE SHOULD NOT BE DENIED THE OPPORTUN ITY OF BEING HEARD ON THE VARIOUS ADDITIONS MADE BY THE LD.AO ON MERITS IN THE PROCEEDINGS U/S.153A & 153A R.W.S. 153C OF THE ACT. 7. AT THE OUTSET, THE LD.DR SUBMITTED BEFORE US TH AT THE LD.CIT(A) HAS ERRED IN NOT CONSIDERING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT AND THE HONBLE KERALA HIGH CO URT CITED SUPRA AND THEREBY DELETED THE ADDITION MADE BY THE LD.AO BY HOLDING THAT IN ASSESSMENT U/S.153C / 153A OF THE A CT ADDITION CAN BE MADE ONLY BASED ON INCRIMINATING DOCUMENTS SEIZE D AT THE TIME OF SEARCH. THE LD.DR FURTHER PLEADED THAT THE MATTE R MAY BE REMITTED BACK TO THE FILE OF LD.CIT(A) IN ORDER TO CONSIDER THE ISSUE AFRESH AFTER EXAMINING THE RATIO LAID DOWN BY THE H ONBLE KARNATAKA AND KERALA HIGH COURT MENTIONED HEREIN ABOVE. THE L D.AR DID NOT RAISE ANY SERIOUS OBJECTIONS FOR THE SAME HOWEVER P LEADED THAT IN THE EVENT THE APPEAL FILED BY THE REVENUE IS UPHELD ON THE JURISDICTION ISSUE, THEN THE ASSESSEE SHOULD NOT BE DENIED AN OPPORTUNITY OF BEING HEARD ON THE VARIOUS ADDITIONS MADE BY THE LD.AO ON MERITS. 6 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS ON RECORD. FROM THE ARGUMENTS ADVANCE D BY BOTH THE PARTIES, IT IS EVIDENT THAT THE COUNSEL FOR THE ASS ESSEE PLEADS FOR ONE MORE OPPORTUNITY BEFORE THE LD.AO WITH RESPECT TO THE ADDITIONS MADE BY THE LD.AO ON MERITS IF THE MATTER IS REMITTED BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE O N THE APPLICABILITY OF THE RATIO LAID DOWN BY THE HONBLE KARNATAKA AND KERALA HIGH COURT CITED SUPRA IN THE CASE OF THE ASSESSEE AND T HE LD.DR IS AGGRIEVED BY THE ORDERS OF THE LD.CIT(A) WHO HAS NO T CONSIDERED THE DECISION OF THE HONBLE KARNATAKA HIGH COURT AN D THE HONBLE KERALA HIGH COURT CITED SUPRA WHILE DECIDING THE CA SE OF THE ASSESSEE. CONSIDERING THE PRAYER OF BOTH THE PARTIE S WE ARE OF THE VIEW THAT THE ENTIRE MATTER IS REQUIRED TO BE REMIT TED BACK TO THE FILE OF LD.AO FOR DE-NOVA CONSIDERATION TO DECIDE THE MA TTER ON MERITS AS WELL AS THE APPLICABILITY OF THE RATIO LAID DOWN BY THE HONBLE KERALA AND KARNATAKA HIGH COURT CITED SUPRA IN THE CASE OF THE ASSESSEE. BOTH THE COUNSELS ALSO CONCEDED FOR THE E NTIRE MATTER TO BE REMITTED BACK TO THE FILE OF LD.AO FOR FRESH CON SIDERATION WITH RESPECT TO ALL THEIR RESPECTIVE APPEALS. ACCORDINGL Y THE APPEALS OF THE REVENUE AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEES ARE HEREBY REMITTED BACK TO THE FILE OF LD.AO FOR FRESH CONSIDERATION. 7 ITA NOS.1683 TO 1687, 3071, 3072, 3089/CHNY /2016 & CO NOS. 168 TO 171, 174 OF 2016 9. WE ALSO HEREBY DIRECT THE LD.AR / ASSESSEE TO C O-OPERATE BEFORE THE LD.REVENUE AUTHORITIES IN THE PROCEEDING S IN ORDER TO EXPEDITE THEIR ORDERS FAILING WHICH THE LD.REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDAN CE WITH MERIT AND LAW BASED ON THE MATERIALS ON RECORD. 10. IN THE RESULT THE APPEALS OF THE REVENUE AS WEL L AS THE CROSS OBJECTIONS OF THE ASSESSEES ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 20 TH JUNE, 2018 AT CHENNAI. SD/- SD/- ( ! ' ! # . $% ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) C DE /JUDICIAL MEMBER DE / ACCOUNTANT MEMBER FC > /CHENNAI, GD /DATED 20 TH JUNE, 2018 RSR D : 9IJ KJ9 /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. = L9 ( )/CIT(A) 4. = L9 /CIT 5. JMN 9 O /DR 6. NP > /GF