S. Rajendran, Madurai V. DCIT, Madurai

ITA 2098/CHNY/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1244 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 12-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Business expenditure; Income from undisclosed sources

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH, CHENNAI . . . , . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2098/CHNY/2016 ( / ASSESSMENT YEAR: 2006-07) SHRI S. RAJENDRAN, PROP. M/S. INLAND REAL ESTATE, D.NO.44-1, BESANT ROAD, CHOLLIKULAM, MADURAI 625 002. VS THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE II, MADURAI. PAN: AGMPR4184L ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.B. RAMAKRISHNAN, CA / RESPONDENT BY : MR.AR.V. SREENIVASAN, JCIT /DATE OF HEARING : 05.07.2018 /DATE OF PRONOUNCEMENT : 04.09.2018 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1, MADURAI, DATED 29.10.2014 IN ITA NO.0052/2013-14 FOR THE ASSESSMENT YEAR 2006-07 PASSED U/S.250(6) R.W.S. 271(1)(C) OF THE ACT. 2. THERE IS A DELAY OF 530 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS FILED A CONDONATION PETITION FOR CONDONING THE DELAY 2 ITA NO.2098/CHNY/2016 STATING THAT THE DELAY HAD OCCURRED BECAUSE HE WAS SERIOUSLY ILL AND WAS UNDER MEDICATION AND THEREFORE HE WAS NOT IN A POSITION TO GIVE ANY INSTRUCTIONS TO HIS AUDITORS REGARDING THE APPEAL. AFTER CONSIDERING THE PRAYER OF THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT THE DELAY IN FILING THE APPEAL IS REQUIRED TO BE CONDONED. ACCORDINGLY WE HEREBY CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSESSEE AND PROCEED TO HEAR THE CASE ON MERITS. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 1. THE ORDER REJECTING TO GRANT FULL RELIEF TO THE APPELLANT BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I MADURAI (HEREINAFTER REFERRED TO AS 'THE LEARNED CIT' UNDER APPEAL IS CONTRARY TO LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF THE CASE. 2. THE LEARNED CIT HAS NOT AFFORDED SUFFICIENT OPPORTUNITY TO THE APPELLANT TO EXPLAIN ITS CASE. 3. THE CIT HAD NOT APPRECIATED THE FACT THE LEARNED ASSESSING OFFICER NO WHERE IN HIS ORDER HAD SPECIFICALLY STATED THAT' 'IN THE COURSE OF ANY PROCEEDINGS BY HIM - NOT SATISFIED AND THAT THE APPELLANT HAD CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME' 4. THE LEARNED CIT HAD FAILED TO NOTE THE FACT, THAT THE AO IN HIS ORDER HAD MENTIONED THAT APPELLANT HAD HIMSELF VOLUNTARILY ADMITTED UNEXPLAINED INCOME OF RS.11 0 LAKHS. 5. THE LEARNED CIT HAD ERRED TO NOTICE THE STATEMENT MADE BY THE AO THAT THE ASSESSEE HAD NOT PAID FULLY THE TAXES DUE AND THIS PROVES THAT THERE WAS FAILURE OF PAYMENT OF TAXES AND AO HIMSELF ADMITS THERE WAS NO 3 ITA NO.2098/CHNY/2016 CONCEALMENT OF INCOME OR ANY FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. 6. FOR THE ABOVE AMONG OTHER GROUNDS OF APPEAL THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL OR AT ANY TIME BEFORE THAT, WITH THE LEAVE OF THIS HON'BLE FORUM. 7. THE APPELLANT CRAVES TO LEAVE TO ADD, ALTER VARY AND / OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. THE APPELLANT PRAYS THAT THE PENALTY OF RS.45, 00,000/- LEVIED IN RESPECT OF THIS ASSESSMENT YEAR 2006-2007 BE DELETED AND PLEADS THAT THE ORDER OF THE LEARNED CIT PASSED U/S 271 (1)(C) OF THE INCOME TAX ACT, 1962 DATED 29/10/2014 UPHOLDING THE PENALTY BE ANNULLED AND RENDER JUSTICE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF REAL ESTATE AS PROPRIETOR OF M/S. INLAND REAL ESTATE. A SURVEY U/S.133A OF THE ACT WAS CONDUCTED IN TWO PREMISES OF M/S. INLAND REAL ESTATE AT MADURAI ON 12.04.2011. INITIALLY THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME HOWEVER SUBSEQUENT TO THE NOTICE U/S.148 OF THE ACT, HE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06 ON 30.04.2012 ADMITTING TOTAL INCOME OF RS.1,33,17,190/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT WAS SERVED TO THE ASSESSEE ON 02.05.2012 AND FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT ON 18.05.2012 WHEREIN THE LD.AO MADE ADDITION OF RS.26,245/- TOWARDS DISALLOWANCE OF 4 ITA NO.2098/CHNY/2016 BUSINESS EXPENDITURE. SUBSEQUENTLY THE LD.AO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT AND LEVIED PENALTY OF RS.45,00,00/- TOWARDS UNACCOUNTED INCOME. 5. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US THAT DUE TO UNAVOIDABLE CIRCUMSTANCES HE COULD NOT APPEAR BEFORE THE LD.CIT(A) WHEN THE APPEAL CAME UP FOR HEARING AND THEREFORE THE LD.CIT(A) HAD PASSED AN EX-PARTY ORDER DISMISSING THE APPEAL OF THE ASSESSEE INLIMINE . IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD.CIT(A) THEREBY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE LD.DR ON THE OTHER HAND VEHEMENTLY OPPOSED TO THE SUBMISSION OF THE LD.AR AND PRAYED FOR CONFIRMING THE ORDERS OF THE LD.REVENUE AUTHORITIES. 6. AFTER HEARING BOTH SIDES, WE DO NOT FIND MERIT IN THE ARGUMENTS ADVANCED BY THE LD.AR. HOWEVER IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE-NOVA CONSIDERATION. WE ALSO HEREBY DIRECT THE ASSESSEE AND HIS COUNSEL TO CO-OPERATE BEFORE THE LD.REVENUE AUTHORITIES PROMPTLY IN ORDER TO EXPEDITE THEIR PROCEEDINGS, FAILING WHICH THEY SHALL BE AT LIBERTY 5 ITA NO.2098/CHNY/2016 TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH MERIT AND LAW BASED ON THE MATERIALS ON RECORD. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED ON THE 04 TH SEPTEMBER, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 04 TH SEPTEMBER, 2018 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF