P.K.Mohamed Muyeenuddin, CHENNAI V. DCIT Corporate Circle 6(2), CHENNAI

ITA 210/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8390 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N VIJAY KUMAR
• Keywords: Period of limitation; Reasonable cause

Judgement Text

, / SMC , IN THE INCOME TAX APPELLATE TRIBUNAL A / SMC BENCH: CHENNAI ... , , ! | BEFORE SHRI N.R.S. GANESAN , JUDICIAL MEMBER ./ ITA NO.210/CHNY/2019 $ $ /ASSESSMENT YEAR: 2010-11 SHRI P.K.MOHAMMED MUYEENUDDIN, C/O.ACCEM INDUSTRIES PVT. LTD., 11 & 12, SENGUNDRAM INDUSTRIAL ESTATE, SINGAPERUMAL KOIL, CHENGALPET-603 204. [PAN: AAIPM 4366 P] VS. THE DY. COMMISSIONER- OF INCOME TAX, CORPORATE CIRCLE-6(2), CHENNAI. ( ( /APPELLANT) ( )*( /RESPONDENT) ( + / APPELLANT BY : MR. N.VIJAY KUMAR, CA )*( + /RESPONDENT BY : MR. AR.V.SREENIVASAN, JCIT + /DT. OF HEARING : 15.07.2019 + /DT. OF PRONOUNCEMENT : 16.07.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-15, CHENNAI, D ATED 30.11.2018, AND PERTAINS TO THE AY 2010-11. THE ASSESSEE HAS A LSO FILED ADDITIONAL GROUNDS OF APPEAL BEFORE THIS TRIBUNAL, WHICH IS PA RT OF THE ORIGINAL GROUNDS RAISED EARLIER. 2. SHRI N.VIJAY KUMAR, LD.COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE AO MADE AN ADDITION OF RS.33,75,750/- WHICH WAS CLA IMED AS A LOAN FROM ITA NO.210/CHNY/2019 :- 2 -: FRIENDS AND RELATIVES BEFORE THE AO. ON APPEAL BY THE ASSESSEE BEFORE THE LD.CIT(A), EVEN THOUGH THE ISSUE OF RE-OPENING AND LEVY OF PENALTY U/S.271D WAS RAISED, THE CIT(A) FOUND THAT THE ASSE SSEE HAS FAILED TO SUBMIT ANY EVIDENCE AND CHALLENGE THE ADDITION OF R S.33,75,750/-. MOREOVER, THERE WAS A DELAY OF 35 DAYS IN FILING OF THE APPEAL BEFORE THE LD.CIT(A). ACCORDING TO THE LD. COUNSEL, THE ASSES SEE WAS IN MEDICAL TREATMENT. THEREFORE, THE ASSESSEE COULD NOT FILE THE APPEAL IN TIME BEFORE THE LD.CIT(A). ACCORDING TO THE LD.AR, SINC E THE ASSESSEE WAS ADMITTED IN THE HOSPITAL, THE DELAY OF 35 DAYS IN F ILING OF THE APPEAL MAY BE CONDONED AND APPEAL MAY BE REMITTED BACK TO THE FILE OF THE AO. 3. ON THE CONTRARY, SHRI AR.V.SREENIVASAN, LD. DEPART MENTAL REPRESENTATIVE SUBMITTED THAT EVEN THOUGH THE LD.CI T(A) HAS NOT CONDONED THE DELAY OF 35 DAYS IN FILING OF THE APPE AL, HE PROCEEDED TO DISPOSE OF THE APPEAL ON MERITS. THEREFORE, THERE IS NO NEED TO REMIT BACK THE APPEAL TO THE AO. SINCE THE ASSESSEE HAS NOT RA ISED THE ISSUE OF ADDITION OF RS.33,75,750/- BEFORE THE LD.CIT(A), HE COULD NOT RAISE THE ISSUE AT THIS STAGE. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. 5. NO DOUBT, THERE WAS A DELAY OF 35 DAYS IN FILING O F THE APPEAL. THE LD.CIT(A) HAS NOT CONDONED THE DELAY. HOWEVER, HE PROCEEDED TO DISPOSE ITA NO.210/CHNY/2019 :- 3 -: THE APPEAL ON MERITS ALSO. THE LD.CIT(A) MAY NOT G ET JURISDICTION TO PROCEED FURTHER ON MERITS WITHOUT CONDONATION OF DE LAY. WHEN THE APPEAL IS NOT FILED VALIDLY AND HAVING REFUSED TO CONDONE THE DELAY, THE LD.CIT(A) CANNOT PROCEED FURTHER TO CONSIDER THE MATTER ON ME RITS. THEREFORE, THE DELAY OF 35 DAYS IN FILING OF THE APPEAL IS DEEMED TO BE CONDONED BY THE LD.CIT(A). EVEN OTHERWISE, THE DELAY WAS DUE TO HO SPITALIZATION OF THE ASSESSEE DURING THE RELEVANT PERIOD OF TIME. THERE FORE, THIS TRIBUNAL FOUND THAT THERE WAS A REASONABLE CAUSE IN NOT FILI NG OF THE APPEAL WITHIN THE PERIOD OF LIMITATION BEFORE THE LD.CIT(A). ACC ORDINGLY, THE DELAY OF 35 DAYS IN FILING OF THE APPEAL BEFORE THE LD.CIT(A) I S CONDONED. 6. NOW, COMING TO THE MERIT OF THE APPEAL THE ONLY I SSUE RELATES TO ADDITION OF RS.33,75,750/-. HOWEVER, THERE WAS A C ONFUSION IN THE GROUNDS RAISED BEFORE THE LD.CIT(A). THE ASSESSEE APPEARS TO HAVE RAISED THE ISSUE WITH REGARD TO THE VIOLATION OF SEC.269SS OF THE ACT AND LEVY OF PENALTY U/S.271D OF THE ACT. A BARE READING OF THE GROUNDS RAISED BEFORE THE LD.CIT(A), IT APPEARS THAT THE MAIN GRIEVANCE O F THE ASSESSEE APPEARS TO BE AN ADDITION OF RS.33,75,750/-. THEREFORE, TH E ISSUE WITH REGARD TO ADDITION OF RS.33,75,750/- HAS TO BE ADJUDICATED ON MERITS. BEFORE THIS TRIBUNAL, THE ASSESSEE HAS SPECIFICALLY RAISED THE ISSUE OF ADDITION OF RS.33,75,750/- SINCE THE LD.CIT(A) HAS NOT CONSIDER ED THE ISSUE ON MERITS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE LD.CIT(A). ACCORDINGLY THE IS SUE OF ADDITION OF RS.33,75,750/- IS REMITTED TO THE FILE OF THE LD.CI T(A). THE LD.CIT(A) ITA NO.210/CHNY/2019 :- 4 -: SHALL EXAMINE THE ADDITION OF RS.33,75,750/- ON MER ITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 16 TH DAY OF JULY, 2019, IN CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED: 16 TH JULY, 2019. TLN + )34 54 /COPY TO: 1. ( /APPELLANT 4. 6 /CIT 2. )*( /RESPONDENT 5. 4 ) /DR 3. 6 ( ) /CIT(A) 6. $ /GF