G.Shanmuganathan, Coimbatore V. DCIT, Coimbatore

ITA 2273/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9579 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 13-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 14-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: S RAMACHANDRAN
• Section: 142(1); 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! , '!# BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO. 2273/MDS/2015 ' $ %$ / ASSESSMENT YEAR : 2007-2008. SHRI. G. SHANMUGANATHAN, C/O. S. RAMACHANDRAN, B.COM, FCA, CHARTERED ACCOUNTANT, SETHURAM NO.15, SUNDARESA IYER LAYOUT, TRICHY ROAD, COIMBATORE 641 018. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE I, COIMBATORE [PAN AQEPS 4036J] ( / APPELLANT) ( /RESPONDENT) &' ( ) / APPELLANT BY : SHRI. S. RAMACHANDRAN, C.A. *+&' ( ) /RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. ( , / DATE OF HEARING : 13-04-2016 -.% ( , / DATE OF PRONOUNCEMENT : 04-05-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-18, CHE NNAI IN ITA ITA NO.2273/MDS/2015. :- 2 -: NO.538/14-15, DT 15.10.2015 FOR THE ASSESSMENT YEAR 2007-2008 PASSED U/S.143(3) R.W.S. 147 AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. THE ASSESSEE HAS RAISED SUBSTANTIVE GROUND IN RES PECT OF ADDITION AND THE GROUND NO. 6 IS NOT ADJUDICATED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AS UNDER:- THE LEARNED CIT(A) FAILED TO PASS AN ORDER AGAINS T THE CONTENTION THAT UNDER THE SURVEY U/S.133A, CONDUCTE D ON 31.07.2008, IN THE RESIDENCE OF THE ASSESSEE WAS VOID AB-INITIO AND HENCE THE ASSESSMENT ORDER IS NU LL AND VOID . 3. BEFORE WE PROCEED TO DECIDE THE CASE ON MERITS, TH E LD. COUNSEL HAS ARGUED ON THE GROUND NO.6 THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT GIVEN ANY OPINION OR PASSED AN OR DER IN RESPECT OF SURVEY OPERATIONS U/S.133A OF THE ACT CONDUCTED ON 31.07.2008 AT RESIDENCE WHICH IS VOID AB-INITIO. 4. THE BRIEF FACTS OF THE CASE THE ASSESSEE IS AN INDI VIDUAL AND IN THE BUSINESS OF REAL ESTATE, IMPORT AND EXPORT OF C OMMODITIES AND INTEREST IN FIRM AS PARTNER AND ALSO DIRECTOR IN TE XTILE MILLS AND PLANTATION COMPANIES FILED INCOME TAX RETURN ON 21. 11.2008 ADMITTING TOTAL INCOME OF ?85,84,920/-. THERE WAS A SURVEY U /S. 133A OF THE ACT ITA NO.2273/MDS/2015. :- 3 -: ON 31.07.2008 AND ASSESSEE IS CHALLENGING THE VALID ITY OF SURVEY OPERATIONS AS IT WAS CARRIED OUT AT RESIDENTIAL PR EMISES OF THE ASSESSEE AND THE LD. ASSESSING OFFICER ISSUED NOTIC E U/S.148 OF THE ACT AND IN COMPLIANCE TO NOTICE THE ASSESSEES COUNSEL APPEARED AND FILED RETURN OF INCOME ON 04.11.2011 ADMITTING THE SAME T OTAL INCOME. SUBSEQUENTLY, NOTICE U/S.143(2) AND 142(1) OF THE A CT ARE ISSUED. IN COMPLIANCE TO NOTICE, THE LD. AUTHORISED REPRESENTA TIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND SUBMITTED DETAILS AN D PRODUCED MATERIALS FOR EXAMINATION AND VERIFICATION. THE LD . ASSESSING OFFICER CONSIDERED THE SUBMISSIONS BASED ON THE TRANSACTION OF PURCHASE OF AGRICULTURAL LANDS AND ELABORATE FINDINGS AT 3 TO 8 OF HIS ORDER AND MADE ADDITIONS U/S.69B OF THE ACT WITH ASSESSED IN COME OF ?1,75,24,530/-. THE ASSESSEE ALLEGED THAT NO FINDI NGS OR CLARIFICATION WAS FOUND ON QUESTION OF VALIDITY OF SURVEY OPERAT IONS AT RESIDENTIAL PREMISES. AGGRIEVED BY THE ORDER, THE ASSESSEE FILE D AN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). 5. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED RE PRESENTATIVE HAS RAISED TEN GROUNDS IN RESPECT ON ADDITIONS AND GROUND NO.2 BEING CRUCIAL AT PAGE 2 OF COMMISSIONER OF INCOME TAX (AP PEALS) ORDER AS UNDER:- ITA NO.2273/MDS/2015. :- 4 -: IN AS MUCH AS THE SURVEY WAS CONDUCTED AT THE RESIDENCE OF THE ASSESSEE WHICH OUTSIDE THE SCOPE O F THE SECTION, THE ENTIRE PROCEEDINGS INITIATED, IS N ON- EST AND VOID ABINITIO. FURTHER, UNDER THE GUISE OF SURVEY ACTUALLY A SEARCH WAS CONDUCTED AT THE RESIDENCE OF THE ASSESSEE AND THE ASSESSEE WAS TAKE N TO THE BANK WHERE HE HAS A LOCKER FACILITY AND WAS MADE TO OPEN AND THE SAME WAS SEARCHED. 6. BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THE HEARING PROCEEDINGS THE ASSESSEE HAS SUBMITTED SUBSTANTIAL INFORMATION THROUGH LD. AUTHORISED REPRESENTATIVE AND FILED WR ITTEN SUBMISSIONS. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BASED ON THE FINDINGS OF THE LD. ASSESSING OFFICER AND SUBMISSIONS OF MAT ERIALS AND WRITTEN SUBMISSIONS DISCUSSED IN LENGTH ON WRITTEN SUBMIS SIONS REFERRED AT PAGE 6 OF THE ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ELABORATELY DISCUSSED ON THE GROUNDS AND PASSED T HE ORDER GRANTING PARTIAL RELIEF AT PARA 5.6 OF HIS ORDER AS UNDER:- IF THIS THEORY IS ACCEPTED HOW THIS APPELLANT PAY S LESS THAN OTHERS TO THE SELLER. EVEN THEN THE CONSIDERATION OUGHT TO HAVE BEEN PAID BY THIS APPELLANT SHOULD NOT BE LESS THAT THE AMOUNT HIS FRIENDS PAID TO THE SELLER PER ACRE. HE NCE, I DIRECT THE ASSESSING OFFICER TO ADOPT ?5.4 LACS PE ACRE WHICH WILL MEET THE END OF JUSTICE. ACCORDINGLY, THE GRO UNDS RAISED IN THIS REGARD ARE PARTLY ALLOWED . 7. AGGRIEVED BY THE ORDER OF COMMISSIONER OF INCOME TA X (APPEALS), THE ASSESSEE FILED AN APPEAL BEFORE TRIB UNAL. ITA NO.2273/MDS/2015. :- 5 -: 8. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE OF ASS ESSEE REITERATED THE SUBMISSIONS MADE IN THE ASSESSMENT P ROCEEDINGS AND APPELLATE PROCEEDINGS ON ADDITIONS AND PARTICULARLY ON THE SURVEY U/S.133A OF THE ACT BY THE REVENUE. BEFORE GOING I NTO THE MERITS OF THE CASE, THE LD. AUTHORISED REPRESENTATIVE PRESSED GROUND NO.6 WERE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO PASS AN ORDER ON THE CONTENTION OF THE ASSESSEE WERE SURVEY U/S.133A OF THE ACT WAS CONDUCTED ON 31.07.2008 AT THE RESIDENCE OF ASSESSE E IS NULL AND VOID AND ALSO SUBSTANTIATED HIS ARGUMENTS ON THE PROVISI ONS OF VALIDITY IN SURVEY OPERATIONS AND RELIED ON OFFICE LETTER AND R EPLYS ON SUBJECT OF THE SURVEY OPERATIONS WITH INCOME TAX DEPARTMENT AN D PRODUCED COPIES OF LETTERS AND EXPLANATIONS. INSPITE OF REP EATED REQUESTS, THE DEPARTMENT HAS NOT CLARIFIED ON THIS DISPUTED ISSUE AND PRAYED FOR ALLOWING THE APPEAL. 9. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF LOWER AUTHORITIES AND OPPOSED THE GROUNDS AND PR AYED FOR DISMISSAL OF APPEAL. 10. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD AND CORRESPONDENCE BETWEEN ASSESSEE AND REVE NUE. THE LD. ITA NO.2273/MDS/2015. :- 6 -: AUTHORISED REPRESENTATIVE VITAL CONTENTION THAT THE DEPARTMENT HAS CONDUCTED SURVEY ON HIS RESIDENTIAL PREMISES AND TH EREFORE SURVEY OPERATION ARE VOID AND DEMONSTRATED THE CORRESPOND ENCE LETTERS FILED WITH THE INCOME TAX DEPARTMENT FOR JURISDICTIONAL CLARIFICATIONS OF THE SURVEY CONDUCTED AT RESIDENCE OF THE ASSESSEE. THE LD. AUTHORISED REPRESENTATIVE DREW ATTENTION TO THE FINDINGS OF TH E COMMISSIONER OF INCOME TAX (APPEALS) AND THE CORRESPONDENCE LETTERS DATED 17.11.2008, 28.11.2008, 01.12.2008, 4.12.2008, 05.1 2.2008 AND 15.12.2008 BETWEEN ASSESSEE AND REVENUE. INSPITE OF REPEATED REQUEST ASSESSEE COULD NOT GET ANY CLARIFICATION. FURTHER LD. AUTHORISED REPRESENTATIVE PROVIDED COPY OF PROCEEDI NGS OF ASSISTANT COMMISSIONER OF INCOME TAX , UNIT II, MADURAI DATED 31.07.2008 IN THE HEARING PROCEEDINGS. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT GIVEN ANY FINDINGS OR ORDER IN RE SPECT OF GROUND NO. 6 WHICH IS HEAVILY DISPUTED. CONSIDERING THE APPAR ENT FACTS, SUBMISSIONS, GROUNDS, CORRESPONDENCE OF THE DEPARTM ENT AND ASSESSEE. WE SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND REMIT THE FILE TO THE OFFICE OF THE C OMMISSIONER OF INCOME TAX (APPEALS) TO ADJUDICATE AND GIVE HIS FIN DINGS ON THE GROUND NO.6 RAISED BEFORE HIM AND ACCORDINGLY, T HE APPEAL OF THE ITA NO.2273/MDS/2015. :- 7 -: ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 11. IN THE RESULT, THE ASSESSEE APPEAL IS PARTLY ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 4TH DAY OF MAY, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI 0 / DATED:04.05.2016 VENU 1 ( *',23 43%, / COPY TO: 1 . &' / APPELLANT 3. 5, () / CIT(A) 5. 389 *',' / DR 2. *+&' / RESPONDENT 4. 5, / CIT 6. 9:$ ; / GF