ITO, CHENNAI V. Shri G.Mani, CHENNAI

ITA 1933/CHNY/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61189 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 15-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T N SEETHARAMAN

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.1933/MDS/2010 ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, BUSINESS WARD-IV(2), CHENNAI-34. (APPELLANT) V. SHRI G.MANI, 56/3, ARCOT ROAD, VIRUGAMBAKKAM, CHENNAI 600 092. PAN : AJKPM 7215 K (RESPONDENT) APPELLANT BY : SHRI SHAJI P JACOB ADDL. C.I.T.D R RESPONDENT BY : SHRI T.N.SE ETHARAMAN,ADVOCATE DATE OF HEARING : 22.05.12 DATE OF PRONOUNCEMENT : 25.05.12 O R D E R PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY REVENUE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX(APPEALS)VIII, DATED 05. 08.2010 BY ITA NO.1933/MDS/10 2 TAKING THE FOLLOWING GROUNDS OF APPEAL. 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED I N DIRECTING THE ASSESSING OFFICER TO DELETE THE DISAL LOWANCE OF ` 30,000/- MADE TOWARDS UNPROVED EXPENSES AND IN COMI NG TO THE CONCLUSION THAT THE EXPENSES WERE FAIR AND JUST IFIABLE. 2.1. THE LD COMMISSIONER OF INCOME TAX(APPEALS) FA ILED TO APPRECIATE THAT THE DISALLOWANCE WAS MADE BY THE AS SESSING OFFICER ONLY BECAUSE THE ASSESSEE FAILED TO SUBSTAN TIATE THE VARIOUS EXPENSES CLAIMED IN THE PROFIT AND LOSS ACC OUNT WITH SUPPORTING BILLS AND VOUCHERS. 3. THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN ALLOWING 50% OF ADDITIONAL EXPENDITURE CLAIMED BY T HE ASSESSEE TOWARDS DEVELOPMENT OF THE TRANSFERRED ASS ET. 3.1. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE DID NOT PLACE SUCH CL AIM BEFORE ITA NO.1933/MDS/10 3 THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS. 3.2. HAVING CONSIDERED THE FRESH CLAIM, THE LD. CO MMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE GIVEN THE ASS ESSING OFFICER TO EXAMINE THE SAME AS PER THE PROVISIONS O F RULE 46A. IT IS SUBMITTED THAT THE ACTION OF THE COMMISS IONER OF INCOME TAX(APPEALS) IS AGAINST THE PRINCIPLES OF NA TURAL JUSTICE. 4. THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED I N COMING TO THE CONCLUSION THAT THE ASSESSEE INCURRED SHORT TERM CAPITAL LOSS OF ` 4 LAKH IN TRANSFERRING HIS ASSET. 4.1. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE APPRECIATED THAT AS PER THE RECORDS AND AS PER THE ASSESSEES OWN ADMISSION, THE PROPERTY TRANSFERRED WAS LOCATED ONLY AT VALASARWAKKAM AND NOT VIRUGAMBAK KAM. IT IS FURTHER SUBMITTED THAT THE ASSESSING OFFICER COR RECTLY ADOPTED THE COST OF THE PROPERTY AS PER THE BALANC E SHEET IN THE ABSENCE OF ANY OTHER SUBSTANTIATING EVIDENCE FR OM THE ASSESSEE. ITA NO.1933/MDS/10 4 5. THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED I N DECIDING THAT THE DEPOSIT OF ` 6,46,534/- IN ASSESSEES BANK ACCOUNT IS EXPLAINED AND THE ADDITION MADE BY THE A SSESSING OFFICER IS NOT WARRANTED. 5.1 THE LD. COMMISSIONER OF INCOME TAX(APPEALS) FAI LED TO APPRECIATE THAT THE ASSESSING OFFICER IN THE ASSESS MENT ORDER HAS ELABORATELY CONSIDERED ALL POSSIBLE SOURCES FOR TOTAL DEPOSITS OF ` 62,57,454/- IN ASSESSEES BANK ACCOUNT AND HAS HELD ` 6,46,534/- AS UNEXPLAINED DEPOSIT, SINCE THE ASSESS EE COULD NOT EXPLAIN THE SOURCE FOR THE SAME. IT IS SU BMITTED THAT THE COMMISSIONER OF INCOME TAX(APPEALS) HAS FAILED TO CONSIDER THE FACTS OF THE CASE AS AVAILABLE ON RECO RD. 6. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A) MAY BESET ASIDE AND T HAT OF THE ASSESSING OFFICER RESTORED. 2. AT THE OUTSET, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT BEFORE THE ASSESSING OFFICER THE AS SESSEE DID NOT ITA NO.1933/MDS/10 5 MAKE SUBMISSION AND FILED NECESSARY EVIDENCES AND T HEREFORE, THE ADDITIONS WERE MADE TO THE INCOME OF THE ASSESSEE B Y THE ASSESSING OFFICER OF ` 30,000/- UNDER THE HEAD UNPROVED EXPENSES, ` 9,50,000/- BY 50% OF ADDITIONAL EXPENDITURE CLAIMED BY THE ASSESSEE TOWARDS DEVELOPMENT OF THE TRANSFERRED ASS ET WAS DISALLOWED BY THE ASSESSING OFFICER AND AN ADDITION OF `6,46,534/- WAS MADE AS INCOME FROM UNDISCLOSED SO URCES. HE SUBMITTED THAT ALL THE EXPLANATION AND DETAILS S UBMITTED BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS), WHO ALLOWED THE APPEAL OF ASSESSEE. HENCE, IT IS SUBMI TTED THAT IN ALL FAIRNESS, THE ISSUES MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATING THE ISSUE S AFRESH. 3. THE DEPARTMENTAL REPRESENTATIVE DID NOT HAVE AN Y OBJECTION TO THE ABOVE SUBMISSIONS OF THE AUTHORISED REPRESENTAT IVE OF THE ASSESSEE. 4. IN VIEW OF THE ABOVE SUBMISSIONS OF BOTH THE PA RTIES, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE MATTER BACK TO ITA NO.1933/MDS/10 6 THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATI NG THE ISSUES AFRESH AS PER LAW AFTER PROPER VERIFICATION AND BY PASSING A SPEAKING ORDER AFTER ALLOWING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, ALL THE GROUNDS OF APPEAL OF REVENUE ARE ALLOWED FOR ST ATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY , THE 25 TH MAY, 2012 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 25 TH MAY, 2012. K S SUNDARAM. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE