SHRI PERIASAMY VENKATESH KUMAR, CHENNAI V. ITO, NCW - 8 (5), CHENNAI

ITA 2144/CHNY/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 6824 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 19-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: J SUDARSAN
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , , $ BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NO. 2144/CHNY/2019 / ASSESSMENT YEAR : 2010-11 SHRI. PERIASAMY VENKATESH KUMAR, NO. 9, KGS ENCLAVE, CHIDAMBARAM ST., CRM NAGAR, KARAYANCHAVADI, CHENNAI 600 056. [PAN: AFCPV 8727Q] VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD 8(5), CHENNAI. ( / APPELLANT) ( %&' /RESPONDENT ) ' ( / APPELLANT BY : SHRI. J. SUDARSAN, CA %&' ( / RESPONDENT BY : SHRI. ARV SREENIVASAN, JCIT ( /DATE OF HEARING : 16.12.2019 ( /DATE OF PRONOUNCEMENT : 20.12.2019 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER : THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-9(I/C), CHENNA I IN ITA NO. 54/CIT(A)-9/2017-18 DATED 30.11.2018 FOR THE ASSESS MENT YEAR 2010-11. :-2-: ITA NO. 2144/CHNY/2019 2. THE APPEAL IS FILED WITH A DELAY OF 102 DAYS . THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY. IT WAS SUBMITTE D THAT SINCE THE ASSESSEES INCOME CHARGEABLE TO TAX HAS NOT EXECUTED THE TAXAB LE LIMIT FOR THIS ASSESSMENT YEAR. SINCE, THE ASSESSMENT WAS REOPENE D AFTER A LONG TIME, THE ASSESSEE MADE CONTACT WITH VARIOUS AGENCIES TO OBTAIN THE COPIES OF VARIOUS STATEMENTS AND OTHER EVIDENCES WHICH HAS TA KEN A LOT OF TIME, DUE TO WHICH THE ASSESSEE COULD NOT FILE THE APPEAL IN TIME. THEREFORE, THE DELAY IS NOT WILFUL AND WANTON. IT WAS ALSO SUBMITTED TH AT IF THE DELAY IS NOT CONDONED, IT WOULD CAUSE IRREPARABLE LOSS TO THE AS SESSEE AND HENCE, IT WAS PLEADED TO CONDONE THE DELAY AND RENDER JUSTICE. 3. WE HEARD THE RIVAL SUBMISSIONS AND CONDON E THE DELAY. 4. SHRI. PERIASAMY VENKATESH KUMAR, THE ASSESSEE, A N INDIVIDUAL, DID NOT FILE HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2 010-11. ON THE BASIS OF NMS INFORMATION, THE AO ISSUED A NOTICE U/S. 148 AND CALLED FOR VARIOUS PARTICULARS. SINCE, THE ASSESSEE HAS NOT C OMPLIED WITH THE REQUIREMENTS AND THE SOURCES FOR CASH DEPOSITS WER E NOT EXPLAINED, THE AO ASSESSED THE CASH DEPOSIT OF RS. 3,28,400/- AS A N UNEXPLAINED CASH DEPOSIT. FURTHER, FROM THE INFORMATION OBTAINED HE FOUND THAT THE ASSESSEE ENTERED INTO THE SHARE TRANSACTION OF RS. 20,000/- OR MORE FOR 126 TIMES, TOWARDS WHICH THE ASSESSEE COULD NOT FUR NISH ANY DETAILS. SINCE, THE INFORMATION FURNISHED DID NOT CONTAINED ANY PURCHASE DETAILS, :-3-: ITA NO. 2144/CHNY/2019 THE AO ASSESSED THE PROFIT FROM SHARE TRANSACTION A T RS. 8,74,571/-. THUS, HE COMPLETED THE EX-PARTE ASSESSMENT. AGGRIE VED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) DISMISSED THE APPEAL FOR WANT OF CORROBORATIVE DOCUMENTARY EVIDENCES ETC . 5. AGGRIEVED, THE ASSESSEE FILED THIS APPEAL. THE LD. AR SUBMITTED THAT THE ASSESSEE DID NOT FILE RETURN OF INCOME AS HIS INCOME CHARGEABLE TO TAX HAS NOT EXCEEDED THE TAXABLE LIMIT FOR THE A SSESSMENT YEAR 2010- 11. THE ASSESSEE HAD TRADED IN SHARES FOR A SHORT PERIOD AND WOUND UP SUBSEQUENTLY. SINCE, THE ASSESSMENT WAS RE-OPENED A ND THE PARTICULARS WERE CALLED FOR, DURING SEPTEMBER, 2017, VERY BELAT EDLY, THE ASSESSEE COULD NOT GET ANY DOCUMENTARY EVIDENCE FROM HIS BAN K, SHARE BROKING AGENT ETC. HIS EFFORTS TO REACH VARIOUS AGENCIES T O SOURCE DATA TO FACILITATE THE ASSESSMENT FAILED WHICH CAUSED THE E X-PARTE ASSESSMENT ALSO. WHILE COMPUTING THE INCOME, THE AO HAS CONSI DERED ONLY THE SALE OF SHARE WITHOUT TAKING INTO ACCOUNT THE PURCHASE V ALUE AND HE ASSESSED THE AMOUNT DEPOSITED BY THE ASSESSEE OUT OF HIS OWN SOURCES AND SAVINGS. IN THE ABOVE FACTS AND CIRCUMSTANCE, THE LOWER AUTHORITIES SHOULD HAVE GIVEN REASONABLE OPPORTUNITY TO THE ASS ESSEE WHICH THEY HAVE NOT FURNISHED. THEREFORE, THE LD. AR PLEADED THAT THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY TO EXPLAIN THE TRANSACT IONS. PER CONTRA, THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIE S. :-4-: ITA NO. 2144/CHNY/2019 6. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL. IT IS CLEAR FROM THE ABOVE THAT THE ASSE SSEE HAD MADE CASH DEPOSITS OF RS. 3,28,400/- AND SHARE TRANSACTION OF RS. 8,74,570/-. THE ASSESSEE PLEADS THAT THE INCOME CHARGEABLE TO TAX H AS NOT EXCEEDED THE TAXABLE LIMIT IN HIS CASE. IN SUCH CASE, THE ASSES SEE HAD TO PUT BEFORE THE INCOME TAX AUTHORITY PROPER MATERIAL WHICH WOUL D ENABLE THEM TO COME TO A CONCLUSION (35 ITR 312 SC). IN THIS CASE, THE ASSESSEE PLEADED THAT SINCE, HE IS AN INDIVIDUAL AND HAVING CLOSED T HE BUSINESS, HE COULD NOT GET ANY DOCUMENTS FROM HIS BANK, SHARE BROKING AGENT ETC. AND SUBMITTED THAT AN OPPORTUNITY MAY BE GRANTED TO EXP LAIN THE IMPUGNED TRANSACTIONS BEFORE THE AO. SINCE, THE ONUS IS ON THE ASSESSEE TO PLACE THE RELEVANT MATERIAL BEFORE THE AO, CONSIDERING TH E FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT TO REMIT THIS ISSUE BACK TO THE AO FOR A FRESH EXAMINATION. THE ASSESSEE SHALL PLA CE ALL MATERIALS ON WHICH HE RELIES IN SUPPORT OF HIS CONTENTIONS BEFOR E THE ASSESSING OFFICER AND COMPLY WITH THE REQUIREMENTS OF THE AO AS PER L AW. THE AO IS FREE TO CONDUCT APPROPRIATE ENQUIRY AS DEEMED FIT. HOWE VER, THE AO SHALL PROVIDE EFFECTIVE OPPORTUNITY TO THE ASSESSEE ON TH E MATERIAL ETC., THAT IS TO BE USED AGAINST THE ASSESSEE, IF ANY, AND THEN P ASS SUITABLE ORDER IN ACCORDANCE WITH LAW. THEREFORE, THE ASSESSEES APP EAL IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. :-5-: ITA NO. 2144/CHNY/2019 7. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 20 TH DECEMBER, 2019 AT CHENNAI. SD/- ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ! /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 20 TH DECEMBER, 2019 JPV (%2343 /COPY TO: 1. ' / APPELLANT 2. %&' /RESPONDENT 3. 5 ) ( /CIT(A) 4. 5 /CIT 5. 3% /DR 6. /GF