A.Shankar, Coimbatore V. ITO, Coimbatore

ITA 2207/CHNY/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4833 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 02-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI MOHAN
• Assessee Lawyers: A S SRIRAMAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B (SMC) BENCH : CHENNAI . , ! [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEM BER ] ./I.T.A. NO. 482/MDS /2012 & 2207/MDS/2014 / ASSESSMENT YEARS : 2008-2009 SHRI. A. SHANKAR, NO.13, RAMALINGAM LAY OUT, 3 RD STREET, RAMANATHAPURAM, COIMBATORE 641 045. [PAN AGVPS 9720Q] VS. THE INCOME TAX OFFICER, WARD II (5) COIMBATORE ( '# / APPELLANT) ( $%'# /RESPONDENT) / APPELLANT BY : SHRI. A.S. SRIRAMAN, ADVOCATE /RESPONDENT BY : SHRI. M. MURALI MOHAN, JCIT. /DATE OF HEARING : 26-04-2017 ! /DATE OF PRONOUNCEMENT : 27-04-2017 & / O R D E R THESE ARE APPEALS FILED BY THE ASSESSEE DIRECTED A GAINST ORDERS DATED 24.01.2012 AND 27.06.2014 OF LD. COMMI SSIONER OF INCOME TAX (APPEALS)-I, COIMBATORE. ITA NOS.482/12 & 2207/14 :- 2 -: 2. FIRST APPEAL IS AGAINST AN ADDITION OF C40,24,620/- MADE BY THE LD. ASSESSING OFFICER DISBELIEVING THE CLAIM OF DRAWING FROM M/S. ALAGAR ROADWAYS WHEREAS THE SECOND APPEAL IS ON LEV Y OF PENALTY ON THE ABOVE ADDITION U/S. 271(1) (C) OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT). APPEAL AGAINST THE LEVY OF PEN ALTY HAS BEEN FILED WITH A DELAY OF THREE DAYS. CONDONATION PETITION HAS BE EN FILED. REASONS HAVE BEEN SHOWN FOR THE DELAY. DELAY IS CONDONED A ND THE APPEAL IS ADMITTED. 3. QUANTUM APPEAL IS FIRST TAKEN UP FOR DISPOSAL. FAC TS APROPOS ARE THAT ASSESSEE ENGAGED IN THE BUSINESS OF LORRY OPERATIONS HAD MADE INVESTMENTS IN MUTUAL FUNDS TO THE TUNE OF C1, 61,12,870/. DURING THE COURSE OF RELEVANT PREVIOUS YEAR INCREAS E IN INVESTMENTS WAS TO THE TUNE OF C40,24,620/-. FOR EXPLAINING TH E SOURCES OF INVESTMENTS, ASSESSEE CLAIMED DRAWINGS OF C55,10,00 0/- FROM AN AOP NAMED M/S. ALAGAR ROADWAYS. HOWEVER, IT SEEMS ASSE SSEE COULD NOT FURNISH HIS ACCOUNT COPY IN THE BOOKS OF THE AOP. A S PER THE ASSESSEE THE AOP WAS NOT MAINTAINING ANY BOOKS. LD. ASSESSI NG OFFICER DISBELIEVED THE CLAIM AND MADE AN ADDITION OF C40,2 4,620/- ITA NOS.482/12 & 2207/14 :- 3 -: 4. AGGRIEVED, ASSESSEE MOVED IN APPEAL BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS). CONTENTION O F THE ASSESSEE WAS THAT M/S. ALAGAR ROADWAYS HAD FILED RETURN OF I NCOME AND HAD ALSO FILED A STATEMENT OF TOTAL INCOME BEFORE THE L D. ASSESSING OFFICER, AND THESE WERE NOT CONSIDERED. HOWEVER, LD. COMMIS SIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTIONS OF THE ASSES SEE OBSERVING THAT ASSESSEE WAS UNABLE TO PRODUCE THE BANK ACCOUNT OF M/S. ALAGAR ROADWAYS AND ALSO HIS OWN BANK ACCOUNT, WHICH COUL D PROVE THE DRAWINGS OF THE ASSESSEE FROM M/S. ALAGAR ROADWAYS . HE THUS UPHELD THE ADDITION. 5. NOW BEFORE ME, LD. AUTHORISED REPRESENTATIVE STRON GLY ASSAILING THE ORDERS OF THE LOWER AUTHORITIES SUBMI TTED THAT WHEN M/S. ALAGAR ROADWAYS HAS FILED ITS RETURN OF INCOME AND WHEN ASSESSEE WAS FOUND TO BE A PARTNER IN SUCH AOP, ATLEAST HIS SHAR E OF INCOME FROM THE AOP SHOULD HAVE BEEN GIVEN CREDIT. AS PER LD. AUTHORISED REPRESENTATIVE NONE OF THE LOWER AUTHORITIES VERIFI ED THE RETURN OF THE M/S. ALAGAR ROADWAYS BEFORE DISBELIEVING THE CLAIM OF THE ASSESSEE. 6. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRONG LY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. ITA NOS.482/12 & 2207/14 :- 4 -: 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS NOT BEEN DISPUTED BY THE REVENUE T HAT M/S. ALAGAR ROADWAYS, AOP FROM WHICH ASSESSEE CLAIMED DRAWINGS OF C55,10,000/- HAD FILED ITS RETURN FOR THE IMPUGNED ASSESSMENT YEAR. IN THE GROUNDS BEFORE LD. COMMISSIONER OF INCOME TA X (APPEALS) ASSESSEE SPECIFICALLY STATED THAT AOP HAD FILED ITS RETURN AND HAD ALSO FURNISHED ITS TOTAL INCOME STATEMENT. IN THE CIRCU MSTANCES, I AM OF THE OPINION THAT ASSESSEE COULD CLAIM CREDIT ATLEAS T FOR HIS SHARE, IF ANY, IN THE PROFITS OF THE AOP M/S. ALAGAR ROADWAY S. LOWER AUTHORITIES FAILED TO VERIFY THE RETURN OF INCOME F ILED BY M/S. ALAGAR ROADWAYS. IN MY OPINION, THE MATTER REQUIRES A FRE SH LOOK BY THE LOWER AUTHORITIES. LD. ASSESSING OFFICER HAS TO VE RIFY THE RETURN AND THE TOTAL INCOME SHOWN BY THE M/S. ALAGAR ROADWAYS FOR THE IMPUGNED ASSESSMENT YEAR AND GIVE CREDIT TO THE ASSESSEE TO THE EXTENT OF HIS SHARE IN SUCH AOP. I THEREFORE, SET ASIDE THE ORDER S OF THE LOWER AUTHORITIES AND REMIT THE ISSUE BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR CONSIDERATION AFRESH. 8. SINCE THE QUANTUM APPEAL HAS BEEN SET ASIDE, THE PE NALTY LEVIED ON THE ASSESSEE ON SUCH ADDITION STANDS CANC ELLED. HOWEVER, LD. ASSESSING OFFICER WILL BE FREE TO INITIATE FRES H PENAL PROCEEDINGS, IF HE FINDS IT NECESSARY, AFTER REDOING THE ASSESSMENT . ITA NOS.482/12 & 2207/14 :- 5 -: 9. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THURSDAY, THE 27 TH DAY OF APRIL, 2017, AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER '# / CHENNAI $% / DATED:27TH APRIL, 2017 KV %& '()( / COPY TO: 1 . / APPELLANT 3. *+, / CIT(A) 5. (-. / / DR 2. / RESPONDENT 4. * / CIT 6. .01 / GF