S.B.Thomas, CHENNAI V. ITO, CHENNAI

ITA 1870/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7873 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 01-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: J RADHAKRISHNAN
• Keywords: Corroborative evidences
• Section: 143(3); 69

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I.T.A.NO S . 1869 & 1870/MDS/2015 / ASSESSMENT YEAR :2008 - 09 SHRI S.B. THOMAS, 12, WEST CLUB ROAD, SHENOY NAGAR, CHENNAI 600 030. [PAN: ACUPT8559M] VS. THE INCOME TAX OFFICER , BUSINESS WARD XIV(3), CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI J. RADHAKRISHNAN, ADVOCATE / RESPONDENT BY : SHRI P. RADHAKRISHNAN, JCIT / DATE OF HEARING : 01 . 02 .201 6 / DATE OF P RONOUNCEMENT : 24 .02 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BOTH THE APPEAL S FILED BY THE SAME ASSESSEE ARE DIRECTED AGAINST SEPARATE ORDER S OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 12 , CHENNAI DATED 20 .0 3 .201 5 AND 23.03.2015 RELEVANT TO THE ASSESSMENT YEAR 20 08 - 09 PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] RELATING TO QUANTUM ADDITION AND ANOTHER RELATES TO PENALTY ADDITION UNDER SECTION 271(1)(C) OF THE ACT RESPECTIVELY. I.T.A. NO S . 1 8 69 & 1 870 /M/ 15 2 2. BRIE F FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, FILED HIS RETURN ADMITTING AN INCOME OF .1,90,500/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS DULY SERVED ON THE ASSESSEE AND FILED DOCUMENTS AND DULY VERIFIE D BY THE ASSESSING OFFICER. AS PER AIR INFORMATION, THE ASSESSEE HAS SOLD HIS IMMOVABLE PROPERTY AT PADI, CHENNAI FOR A CONSIDERATION OF .22,25,300/ - . THIS PROPERTY WAS SOLD WITHIN A YEAR OF PURCHASE. THE RESULTANT GAIN IS TAXED AS SHORT TERM CAPITAL GAIN . THE ASSESSEE CLAIMED SOME EXPENDITURE TO THE EXTENT OF .3,95,000/ - MADE FOR THE SITE. DETAILS AND EVIDENCE OF THE SAME WERE CALLED FOR FROM THE ASSESSEE. THE ASSESSEE HAS FURNISHED SOME EVIDENCES. AS THE SAME WERE FOUND NOT SUPPORTIVE TO THE CLAIM, THE ASSESSING OFFICER DISALLOWED THE EXPENSES AND WORKED SHORT TERM CAPITAL GAIN AND ASSESSED TOTAL INCOME OF THE ASSESSEE AT .13,44,800/ - . 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). SINCE NONE ATTENDED ON THE SPECIFIED DATES AND N O WRITTEN EXPLANATION SUPPORTED BY DOCUMENTARY EVIDENCES HAS BEEN FILED BY THE ASSESSEE NOR A LETTER SEEKING TIME, BY FOLLOWING THE DECISION IN THE CASE OF CIT V. MULTIPLAN (INDIA) PVT. LTD. 38 ITD 320(DEL), THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. I.T.A. NO S . 1 8 69 & 1 870 /M/ 15 3 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS ADMITTED THAT IN RESPONSE TO NOTICE SERVED ON THE ASSESSEE, THE ASSESSEE HAS FI LED DOCUMENTS AND THE SAME WERE PERUSED. FURTHER, AGAINST THE CLAIM OF EXPENDITURE, DETAILS AND EVIDENCES WERE CALLED FOR FROM THE ASSESSEE AND THE ASSESSEE FURNISHED THE SAME. HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE DETAILS FURNISHED BY THE AS SESSEE AND BY DISALLOWING THE EXPENDITURES CLAIMED BY THE ASSESSEE, REWORKED THE SHORT TERM CAPITAL GAINS AND ADDITION WAS MADE. HE FURTHER SUBMITTED THAT THE LD. CIT(A) HAS ALSO NOT AFFORDED SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND PASSED EX - PARTE ORDER AND THEREFORE, IT WAS PRAYED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO SUBSTANTIATE ITS CASE BY FILING ALL NECESSARY MATERIAL EVIDENCE BEFORE THE LD. CIT(A). 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE LD. CIT(A) H AS GIVEN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE, BUT THE ASSESSEE HAS NOT PUT APPEARANCE BEFORE THE LD. CIT(A). THEREFORE, THE LD. CIT(A) PASSED EX - PARTE ORDER AND HE RELIED ON THE ORDERS OF AUTHORITIES BELOW. 6. BOTH PARTIES HAVE BEEN HEARD, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AND IT WAS NOT 144 ASSESSMENT. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DISALLOWED THE EXPENDITURE I.T.A. NO S . 1 8 69 & 1 870 /M/ 15 4 OF .3,95,00 0/ - CLAIMED BY THE ASSESSEE ON THE GROUND THAT SUPPORTING EVIDENCE WAS NOT FURNISHED BY THE ASSESSEE. IT IS NOT CLEAR FROM THE ASSESSMENT ORDER AS WHAT DETAIL WAS ASKED BY THE ASSESSING OFFICER AND NOT FILED BY THE ASSESSEE. THE ASSESSING OFFICER HAS NOT P ASSED A SPEAKING ORDER AND IT IS CRYPTIC. IN THE APPELLATE ORDER, IT IS MENTIONED THAT THE CASE WAS POSTED FOR HEARING ON SEVERAL DATES, BUT NO DETAILS WERE MENTIONED. EVEN, THE LD. CIT(A) HAS NOT MENTIONED WHAT EVIDENCE IS REQUIRED TO BE FURNISHED BY THE ASSESSEE TO CLAIM THE EXPENDITURE. WHAT IS LACKING FROM ASSESSEE S SIDE WAS NOT CLEARLY SPELLED OUT. IT IS ALSO NOT THE CASE THAT THE ASSESSEE HAS NOT FURNISHED ANY DETAILS FOR CLAIMING THE EXPENDITURE. HENCE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A ) AND REMIT THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER AFFORDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE BY DIRECTING THE ASSESSEE TO FURNISH THE DETAILS AS MAY BE REQUIRED TO SATISFY THE ASSES SING OFFICER. THUS, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. THE APPEAL FILED BY THE ASSESSEE IN I.T.A. NO. 1870/MDS/2015 FOR THE ASSESSMENT YEAR 2008 - 09 IS AGAINST CONFIRMATION OF LEVY OF PENALTY UNDER SECTION 271(1)(C) O F THE ACT . SINCE THE APPEAL FILED BY THE ASSESSEE RELATING TO QUANTUM ADDITION IS SET ASIDE AND REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AFRESH, THE APPEAL FILED BY THE ASSESSEE , AGAINST I.T.A. NO S . 1 8 69 & 1 870 /M/ 15 5 THE PENALTY ORDER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT AGAINST QUANTUM ADDITION UNDER 143(3) ASSESSMENT , IS ALSO REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, BOTH THE A PPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 24 TH FEBRUARY , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 24 . 0 2 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.