Shri Tamizhmalarselvan, Pondicherry V. ITO, Pondicherry

ITA 2123/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4502 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 14-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N NANDAKUMAR
• Keywords: Business income; Principle of natural justice
• Section: 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ./ ITA NO.: 2123/MDS/2016 / ASSESSMENT YEARS: 2008-09 SHRI TAMIZHMALARSELVAN, #23, PUDHUKULAM STREET, ARIYANKUPPAM, PONDICHERRY 605 007 PAN: AMQPK7874C V. THE INCOME TAX OFFICER, WARD-4, G.P. THOTTAM, MUTHIALPET, PONDICHERRY 605 003. ( /APPELLANT) ( /RESPONDENT) /APPELLANT BY : SHRI PHILIP GEORGE, ADVOCATE /RESPONDENT BY : SHRI N. NANDAKUMAR, JCIT / DATE OF HEARING : 15.05.2017 / DATE OF PRONOUNCEMENT : 30.05.2017 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO.2123/MDS/2016 IS AN APPEAL FILED BY THE AS SESSEE AGAINST THE ORDER OF THE LD. CIT(APPEALS)-PUDUCHERR Y, IN APPEAL NO.161/CIT(A)-PDY/2013-14 DATED 17.05.2016 FOR THE ASSESSMENT YEAR 2008-09. 2 I.T.A. NO.2123/MDS/2016 2. SHRI PHILIP GEORGE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI N. NANDAKUMAR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSEE WAS A GENERAL POWER OF ATTORNEY HOLDER FOR SHRI M. RADHAK RISHNAN, SHRI R. RAMANUJAM AND SHRI R. SADAGOPAN IN RESPECT OF LAND SITUATED AT NO.33, KURUMAMPATTU VILLAGE. IT WAS TH E SUBMISSION THAT THE SAID LAND HAS BEEN CUT INTO PLOTS AND THE SAME WAS SOLD BY THE ASSESSEE ON BEHALF OF THE 3 OWNERS, AS THE ASSE SSEE WAS IN THE BUSINESS OF SALE OF PLOTS AND A CABLE TV OPERATOR. IT WAS THE SUBMISSION THAT THE TOTAL SALE CONSIDERATION WAS RS .30,50,000/-, WHICH WAS DEPOSITED INTO THE SAVINGS BANK ACCOUNT I N ING VYSYA BANK ON VARIOUS DATES. THE ASSESSEE HAD PRODUCED T HE LEDGER ACCOUNTS OF THE SAID 3 PERSONS IN THE ASSESSEES BO OKS, WHEREIN IT SHOWED THAT THE ASSESSEE HAD PAID THE AMOUNT OF RS. 30,50,000/- TO THE LAND OWNERS. IT WAS THE SUBMISSION THAT SUMMON S U/S. 131 OF THE ACT WAS ISSUED TO THE LAND OWNERS AND SHRI R. R AMANUJAM AND SHRI M. RADHAKRISHNAN APPEARED AND CONFIRMED HAVING RECEIVED A SUM OF RS.15,00,000/- FROM THE ASSESSEE. HOWEVER TH E 3 RD PERSON NAMELY SHRI R. SADAGOPAN HAD NOT APPEARED BEFORE TH E ASSESSING OFFICER. CONSEQUENTLY THE ASSESSING OFFICER HAD TR EATED THE 3 I.T.A. NO.2123/MDS/2016 BALANCE OF RS.15,50,000/- AS THE BUSINESS INCOME IN THE HANDS OF THE ASSESSEE. ON APPEAL, THE LD. CIT(APPEALS) HAD CONFIRMED THE ADDITION. 4. IT WAS SUBMITTED BY THE LD. AR THAT THE AMOUNT O F RS.15,50,000/- HAD ALSO BEEN PAID TO THE OWNERS. SHRI R. SADAGOPAN WAS UNABLE TO ATTEND, AS HE WAS N OT WELL. IT WAS THE SUBMISSION THAT AN AFFIDAVIT DATED 30.11.2009 H AD ALSO BEEN FILED, WHEREIN THE 3 LAND OWNERS HAD CONFIRMED THAT THE FULL PAYMENT WAS SETTLED BY THE ASSESSEE AND THERE WERE NO DUES FROM THE ASSESSEE. IT WAS THE SUBMISSION THAT THE BANK STAT EMENT OF SHRI R. SADAGOPAN JOINTLY MAINTAINED WITH HIS WIFE SMT. PREMAVATHI WAS ALSO PRODUCED WHICH SHOWED THE DEPOSITS OF RS.5 LAKHS AND RS.10 LAKHS RESPECTIVELY ON 19.02.2007 AND 28.02.20 07. IT WAS THE SUBMISSION THAT THE ADDITION MADE BY THE LD. ASSESS ING OFFICER AND CONFIRMED BY THE LD.CIT(APPEALS) MAY BE DELETED OR IN THE ALTERNATIVE THE ISSUE RESTORE TO THE FILE OF THE LD . ASSESSING OFFICER FOR RE-ADJUDICATION. 5. IN REPLY, THE LD. DR VEHEMENTLY SUPPORTED THE OR DERS OF THE LD.AO AND THE LD.CIT(APPEALS). IT WAS THE SUBMISSI ON THAT NO 4 I.T.A. NO.2123/MDS/2016 DOCUMENTARY EVIDENCE WAS PRODUCED AND ADEQUATE OPPO RTUNITY HAS BEEN PROVIDED TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. PERUS AL OF THE ASSESSMENT ORDER, CLEARLY SHOWS THAT 2 OF THE OWNER S OF THE PROPERTY HAVE CONFIRMED HAVING RECEIVED THE MONEY D UE ON THE SALE OF THE PLOTS FROM THE ASSESSEE. ON PERUSAL OF THE REMAND REPORT FILED BY THE LD. AO BEING ITO, WARD-4, PUDUCHERRY B EFORE THE LD.CIT(APPEALS) WHICH IS DATED 02.03.2016 SHOWS THA T THE LD. AO HAS ACCEPTED THE FACT THAT THE AFFIDAVIT HAS BEEN F ILED BEFORE THE LD.AO AND THAT SHRI R. SADAGOPAN WAS UNABLE TO APPE AR IN RESPONSE TO THE SUMMONS DUE TO PARALYTIC ATTACK. I T IS FURTHER NOTICED FROM PAGE 3 OF THE REMAND REPORT THAT THE F ACTUM OF PAYMENT TO SHRI R. SADAGOPAN OF RS.15 LAKHS ALONG W ITH HIS BANK ACCOUNT STATEMENT WERE PRODUCED BEFORE THE LD.AO. IT IS NOTICED THAT THE LD.AO HAS NOT CONSIDERED ANY OF THESE DETA ILS WHEN PASSING THE ASSESSMENT ORDER. ON PERUSAL OF THE OR DER OF THE LD.CIT(APPEALS) FURTHER SHOWS THAT THE REMAND REPOR T OF THE LD.AO HAS ALSO NOT BEEN CONSIDERED BY THE LD.CIT(APPEALS) . THIS BEING SO, IN THE INTEREST OF NATURAL JUSTICE AND AS SUBST ANTIAL EVIDENCE ARE AVAILABLE BEFORE THE LD.AO WHICH HAVE NOT BEEN REBU TTED BY THE 5 I.T.A. NO.2123/MDS/2016 LD.AO, THE ISSUES IN THE APPEAL ARE RESTORED TO THE FILE OF THE LD.AO FOR RE-ADJUDICATION AFTER GRANTING THE ASSESSEE ADE QUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30 TH MAY, 2017 AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 30 TH MAY, 2017. JR. /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF.