G.SHANKAR, THANJAVUR V. DCIT CIRCLE-2, TRICHY

ITA 197/CHNY/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0919 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 27-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHAADDL CIT D R
• Assessee Lawyers: B RAMAKRISHNAN FCA
• Keywords: Additional evidence
• Section: 201; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & S HRI RAMIT KOCHAR , ACCOUNTANT MEMBER ./ I.T.A.NO.197/CHNY/2020 / ASSESSMENT YEAR : 2011-12 SHRI G.SHANKAR , 15-16,VNS GARDEN, RAMAKRISHNAPURAM, THANJAVUR 613 007 . VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(1), TRICHY. [PAN ASYPS 3522 M ] ( / APPELLANT) ( ! /RESPONDENT) / APPELLANT BY : MR.B.RAMAKRISHNAN,FCA !' /RESPONDENT BY : M S.VIJAYAPRABHA,ADDL.CIT D.R # $ %& / DATE OF HEARING : 08 - 0 6 - 20 20 '( %& / DATE OF PRONOUNCEMENT : 08 - 0 6 - 20 20 '# / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, TRICHY IN APPEAL NO.296/2015-16/CIT(A)-1/TRY DATED 29.11.2019 FOR THE ASSESSMENT YEAR 2011-12 DISMISSING THE APPEAL OF ASSESSEE. T HIS APPELLATE PROCEEDINGS ARE HELD THROUGH VIDEO CONFERENCING. ITA NO.197/CHNY/2020 :- 2 -: 2. MR.B.RAMAKRISHNAN REPRESENTED ON BEHALF OF THE ASSESSEE, AND MS.VIJAYAPRABHA REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSE SSEE IS AN INDIVIDUAL. ON THE BASIS OF AIR INFORMATION THAT A SSESSEE HAD MADE VARIOUS CASH DEPOSITS IN THE BANK ACCOUNT OF ICICI, SAVINGS BANK ACCOUNT DURING THE RELEVANT ASSESSMENT YEAR, NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE. AS THE ASSESSEE HAD NOT PRODUCED PROOF OR PROVE THE SOURCE FOR CASH DEPOSIT S OF .64,31,000/- AND ANOTHER LOAN AMOUNT OF .3,24,30,000/- RECEIVED FROM SHRI P.JEEVA, WHO HAD NOT RESPONDED TO THE NOTICES ISSUE D BY THE A.O. SEEKING CONFIRMATION FROM THE LENDER, THE SAME HAD BEEN ADDED TO THE INCOME OF THE ASSESSEE. IT WAS FURTHER SUBMITTED B Y THE LD. A.R. THAT ON APPEAL, THE LEARNED CIT(A) HAD CALLED FOR REMAND REPORT. IT WAS SUBMITTED THAT IN PARA 3.7, THE LEARNED CIT(A) HAD CALLED FOR REMAND REPORT CONSIDERING THE NON-PRODUCTION OF EVIDENCES BY THE ASSESSEE. IT WAS A FURTHER SUBMISSION THAT IN PARA 3.8, LEARNED CIT(A) AFTER ALLEGING THE LACKA DAISICAL ATTITUDE ON THE JCIT, CIRCLE-1,T HANJAVUR, DISPOSED OF THE APPEAL BY DISMISSING THE ASSESSEES APPEAL. IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESSEES COMPANY, M/S.PEEKA Y MEDIEQUIP LIMITED WAS MAKING LOSSES AND IN ORDER TO REVIEW AN D REVIVING THE COMPANY, THE ASSESSEE WAS OCCUPIED WITH STRUCTURAL PLANNING AND WAS CONSEQUENTLY UNABLE TO PRODUCE THE CONFIRMATION LET TERS AS CALLED FOR. ITA NO.197/CHNY/2020 :- 3 -: IT WAS A FURTHER SUBMISSION THAT THE ASSESSEES COM PANY ENDED UP BEING TAKEN OVER BY THE BANKERS FROM SEPTEMBER, 201 6, AND THE ASSESSEE WAS ALSO ENGAGED IN FINALIZING THE ONE TIM E SETTLEMENT WITH UNITED BANK OF INDIA, CALCUTTA. IT WAS ALSO A SUBMI SSION THAT THE SAID SHRI P.JEEVA WAS OUT OF CHENNAI DURING THE PERIOD, WHEN THE LETTER WAS ISSUED TO HIM, AND CONSEQUENTLY HIS CONFIRMATION LE TTER WAS ALSO NOT MADE AVAILABLE TO THE DEPARTMENT. IT WAS A FURTHER SUBMISSION THAT HOWEVER, THE ASSESSEE HAS NOW BEEN ABLE TO OBTAIN T HE CONFIRMATION LETTERS AND THE SAME IS PLACED ON RECORD IN THE FOR M OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. IT WAS A PRAYER THAT THE ISSUES RAISED IN THE APPEAL MAY BE RESTORED TO THE FILE OF LEARNED CIT(A) FOR RE-ADJUD ICATION. 4. IN REPLY, THE LD. D.R. SUBMITTED THAT THE REASO NS GIVEN BY THE ASSESSEE ARE VAGUE AND THE ASSESSEE HAS NOT CO- OPERATED IN EITHER THE ASSESSMENT PROCEEDINGS OR THE FIRST APPELLATE P ROCEEDINGS. IT WAS A PRAYER THAT AS CONFIRMATION LETTERS WERE ALSO NOT SUBSTANTIATED, THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE UPHELD . IT WAS FURTHER SUBMITTED BY THE LD. D.R. THAT IF AT ALL THE ISSUES WERE GOING TO BE RESTORED FOR RE-ADJUDICATION ON ACCOUNT OF APPLICAB ILITY BY RULE-29 ITAT RULES, THEN THE ISSUES MUST BE RESTORED TO THE FILE OF A.O. FOR PROPER VERIFICATION. ITA NO.197/CHNY/2020 :- 4 -: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS THROUGH VID EO CONFERENCING AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO PERUSED THE PETITION IN TERMS OF RULE-29 OF IT AT RULES, WHICH HAS BEEN FILED BY THE ASSESSEE, AS ALSO THE EVIDENCES S UBMITTED ALONG WITH THE SAID PETITION. IN THE PETITION, THE ASSESSEE H AS SUBSTANTIALLY ADMITTED THAT HE WAS NOT ABLE TO PRODUCE THE REQUIS ITE EVIDENCES ON ACCOUNT OF FINANCIAL HARDSHIPS THAT WERE BEING FACE D BY THE ASSESSEES COMPANY, WHICH ADMITTEDLY HAD FORCED THE ASSESSEE T O TAKE THE SAID LOAN. THE ASSESSEE HAS PRODUCED THE CONFIRMATION LE TTERS FROM THE TWO PERSONS ALSO. THE FILE ALSO CONTAINS AN ORDER FROM THE NATIONAL COMPANY LAW TRIBUNAL, DIVISION BENCH, CHENNAI AGAI NST M/S.PEEKAY MEDIEQUIP LIMITED, UNDER SECTION 7 READ WITH RULE 4 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016, VIDE ORDER DATED 13.08.2 019. THE SAID EVIDENCES CLEARLY SHOW THAT THE COMPANY, IN WHICH T HE ASSESSEE IS A MANAGING DIRECTOR, IS ACTUALLY IN FINANCIAL DIFFICU LTIES. WHEN THE VERY SOURCE OF INCOME OF ASSESSEE IS IN TROUBLE, THE ASS ESSEE WOULD FIRST TRY TO PROTECT HIS SOURCE OF INCOME. THIS BEING SO, WE FIND THAT THE REASONS GIVEN BY THE ASSESSEE IN HIS PETITION UNDER RULE-29 OF ITAT RULES, IS SUBSTANTIATED AND THE ASSESSEE WAS PREVEN TED BY SUFFICIENT CAUSE IN NOT PRODUCING THE EVIDENCES IN TIME EITHER BEFORE THE ASSESSING AUTHORITY, OR BEFORE THE CIT(A). HOWEVER , CONSIDERING THAT THE EVIDENCES PRODUCED IN THE FORM OF CONFIRMATION LETTERS HAVE BEEN ITA NO.197/CHNY/2020 :- 5 -: PRODUCED FOR THE FIRST TIME BEFORE THE TRIBUNAL, WE HAVE NOT INCLINED TO ACCEPT THE PRAYER OF THE ASSESSEE THAT THE ISSUES R AISED IN THE APPEAL MUST BE RESTORED TO THE FILE OF LEARNED CIT(A). FOR THE PROPER APPRECIATION OF THE EVIDENCES, WE ARE OF THE VIEW T HAT IN LINE WITH THE SUBMISSIONS OF THE LD. D.R., THE ISSUES IN THIS APP EAL MUST BE RESTORED TO THE FILE OF A.O. FOR RE-ADJUDICATION AFTER GRANT ING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE AND W E DO SO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 08 TH JUNE, 2020, AT CHENNAI. SD/- SD/- ( ) ( ) (RAMIT KOCHAR) & '' /ACCOUNTANT MEMBER (GEORGE MATHAN) ( '' / JUDICIAL MEMBER ) $ / CHENNAI * / DATED: 08 TH JUNE, 2020. K S SUNDARAM + !%,- . -% / COPY TO: 1 . / APPELLANT 4. # /% / CIT 2. !' / RESPONDENT 5. -01 !%2 / DR 3. # /% () / CIT(A) 6. 15 6$ / GF