N.Maria Robin, Palayamkottai V. ACIT, Madurai

ITA 2349/CHNY/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5068 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 25-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Bad and doubtful debts

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI S.JAYARAMAN , ACCOUNTANT MEMBER I.T.A.NOS.2349,2350,2351,2352,2353,2354 & 2355/CHNY /2017 ASSESSMENT YEARS: 2001-02, 2002-03, 2003-04, 2004-0 5, 2005-06, 2006-07 & 2007-08 SHRI N.MARIA ROBIN , NO.48,50 FEET ROAD, OPP.R.C.CHURCH, XAVIER COLONY, BYE PASS ROAD, PALAYAMKOTTAI. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, MADURAI-34. [PAN ACSPM 0009 P ] ( / APPELLANT) ( /RESPONDENT) I.T.A.NOS.1234,1235 & 1236/CHNY/2018 ASSESSMENT YEARS : 2005-06,2006-07,2007-08 SMT.N.AROCKIAM , NO.82,B,THIRUCHENDUR ROAD, PALAYAMKOTTAI. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, MADURAI-34. [PAN ACHPA 3035 G ] ( / APPELLANT) ( /RESPONDENT) I.T.A.NOS.1237,1238,1239,1240, 1241 & 1242/CHNY/201 8 ASSESSMENT YEARS : 2002-03, 2003-04, 2004-05, 2005 -06, 2006-07 & 2007-08 SMT.ESTHER JAYARANI , NO.48,50 FEET ROAD, OPP.R.C.CHURCH, XAVIER COLONY, BYE PASS ROAD, PALAYAMKOTTAI. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, MADURAI-34. [PAN AESPJ 6194 G ] ( / APPELLANT) ( /RESPONDENT) SHRI N.MARIA ROBIN SMT.N.AROCKIAM SMT.ESTHER JAYARANI :- 2 -: / APPELLANT BY : MR.K.SUBRAMANIAM, C.A & MR.R.S.BALAJI,ADVOCATE /RESPONDENT BY : MR.M.SREENIVAS RAO, CIT,DR ! / DATE OF HEARING : 28 - 0 6 - 201 8 '#$% ! / DATE OF PRONOUNCEMENT : 28 - 0 6 - 201 8 !' / O R D E R PER BENCH ITA NOS.2349 TO 2355 /CHNY/2017, ITA NOS.1234 TO 1236/CHNY/2018 & ITA NOS.1237 TO 1242/CHNY/2018 ARE THE APPEALS FILED BY THE DIFFERENT ASSESSES, AGAINST T HE SEPARATE COMMON ORDERS OF THE COMMISSIONER OF INCOME TAX (AP PEALS)-19, CHENNAI, IN ITA NO.438,439,326,440,441,327,328/14-1 5, DATED 12.04.2017 FOR ASSESSMENT YEARS 2001-02, 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 & 2007-08, ITA NOS.423,424 & 422/14-15, DATED 20.12.2017 FOR ASSESSMENT YEARS 2005-06, 2006-07, 2007-08 & ITA NOS.432 TO 437/14-15, DATED 20.12.2017 FOR ASSESSME NT YEARS 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 & 2007 -08. 2. AS THE ISSUES IN ALL THESE APPEALS ARE INTER-CONNEC TED AND IDENTICAL, ALL APPEALS ARE DISPOSED OFF BY THIS COM MON ORDER. 3. MR.K.SUBRAMANIAM, C.A & MR.R.S.BALAJI, ADVOCAT E REPRESENTED ON BEHALF OF THE ASSESSEE AND MR.M.SRE ENIVAS RAO, C.I.T D.R REPRESENTED ON BEHALF OF THE REVENUE. SHRI N.MARIA ROBIN SMT.N.AROCKIAM SMT.ESTHER JAYARANI :- 3 -: 4. IT WAS SUBMITTED BY LD.A.R THAT TWO MAIN ISSUES ARE INVOLVED IN ALL THESE APPEALS BEING ONE IS NON-ALLOWANCE OF BAD DEBTS AND SECOND IS NON-DISALLOWANCE OF EXPENDITURES RELATING TO DEVELOPMENT OF THE LAY-OUT AND SALES OF THE PLOTS. IT WAS A SUBMIS SION THAT SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON ONE SHRI S.PONNA IYAN ON 28.03.2007. AS CONSEQUENCE OF THE SEARCH ON SHRI S .PONNAIYAN, A SEARCH U/S.132 OF THE ACT WAS CONDUCTED ON 03.04.20 07 IN THE PREMISES OF ASSESSEE. NOTICE U/S.153C DATED 24.10.2 008 WAS ISSUED ON THE ASSESSEE. THE RETURN FOR ASSESSMENT YEAR 20 01-02 WAS FILED AND THE ASSESSMENT WAS COMPLETED ON 30.12.2008 WIT HIN A PERIOD OF BARELY TWO MONTHS AND ONE WEEK FROM THE DATE OF ISS UE OF NOTICE U/S.153C OF THE ACT. IT WAS A SUBMISSION THAT ASSES SEE HAD NOT BEEN GRANTED ADEQUATE OPPORTUNITY TO PRODUCE ALL THE DET AILS IN THE COURSE OF ASSESSMENT. IT WAS A SUBMISSION THAT AGAINST TH E ASSESSMENT ORDER, THE ASSESSEE HAD FILED APPEALS TO THE LD.CIT (A). THE APPEALS ADMITTEDLY WERE DELAYED ON ACCOUNT OF ILLNESS OF AS SESSEES COUNSEL SHRI K.SUBRAMAINAM, CHARTERED ACCOUNTANT, WHO IS NE ARLY 77 YEARS OLD. IT WAS A SUBMISSION THAT THE DELAY IN FILING OF THE APPEALS BEFORE THE LD.CIT(A) HAD NOT BEEN CONDONED AND LD.CIT(A) D ISMISSED THE APPEALS OF THE ASSESSEE ON LIMITATION AND ALSO DID NOT CONSIDER THE EVIDENCES PRODUCED BEFORE HIM, WHEN ADJUDICATING TH E ISSUES ON MERITS. IT WAS THE PRAYER THAT THE DELAY IN FILLIN G OF ALL THESE APPEALS SHRI N.MARIA ROBIN SMT.N.AROCKIAM SMT.ESTHER JAYARANI :- 4 -: MAY BE CONDONED AND THE ASSESSEE HAD NO OBJECTION, IF THE ISSUES WERE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICA TION AFTER GRANTING ADEQUATE OPPORTUNITY OF BEING HEARD. 5. IN REPLY, LD.D.R VEHEMENTLY SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ASSESSMENT ORDER IN THE PRESENT CASE CLEARLY SHOWS THAT NOTICE U/S.153C HAS BEEN ISSUED ON THE ASSESSEES ONLY ON 2 4.10.2008 AND THE RETURN HAS BEEN FILED BY THE ASSESSEES ON 02.12 .2008. THE ASSESSMENT HAS BEEN COMPLETED ON 30.12.2008 WITHIN ONE MONTH. IT IS NOTICED THAT THERE IS NO RECORDING OF THE EVIDENCES FOUND IN THE COURSE OF SEARCH TO HAVE BEEN PROVIDED TO THE ASSESSEE. A PERUSAL OF THE ASSESSMENT ORDER ALSO SHOWS THAT THOUGH THE RETURN HAS BEEN FILED ON 02.12.2008, QUESTIONNAIRE HAS BEEN ISSUED ON 01.12. 2008. FURTHER, A PERUSAL OF THE ORDER OF LD.CIT(A) SHOWS THAT THE LD .CIT(A) HAS DISMISSED THE ASSESSEES APPEAL ON LIMITATION. IT I S ALSO NOTICED THAT LD.CIT(A) HAS GONE INTO MERITS, BUT HAS NOT GIVEN A NY ADJUDICATION ON MERITS ALSO. A PERUSAL OF THE AFFIDAVIT FILED BY TH E AUTHORIZED REPRESENTATIVE OF ASSESSEE, MOST SPECIFICALLY, MR.K .SUBRAMANIAM,C.A SHOWS THAT HE WAS BEDRIDDEN FOR FIVE MONTHS AND COU LD NOT ATTEND TO ROUTINE WORKS PROPERTY. THIS AFFIDAVIT FILED BY TH E CHARTERED SHRI N.MARIA ROBIN SMT.N.AROCKIAM SMT.ESTHER JAYARANI :- 5 -: ACCOUNTANT, HAS NOT BEEN SHOWN TO BE FALSE. THIS B EING SO, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THA T THE DELAY CAUSED IN FILING OF THE APPEALS ON ACCOUNT OF THE ILLNESS OF THE AUTHORIZED REPRESENTATIVE OF ASSESSEE, IS LIABLE TO BE CONDONE D AND CANNOT BE A REASON TO DISMISS THE APPEAL OF THE ASSESSEE. THIS BEING SO, THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE LD.CIT(A) STANDS CONDONED. PERUSAL OF THE ASSESSMENT ORDER AS ALSO T HE ORDER OF THE CIT(APPEALS) SHOWS THAT ALL FACTS HAVE NOT BEEN EXA MINED OR VERIFIED BY THE LOWER AUTHORITIES. THIS BEING SO, WE ARE OF THE VIEW THAT ALL THE ISSUES IN THESE APPEALS OF ASSESSEE MUST BE RESTORE D TO THE FILE OF LD. ASSESSING OFFICER FOR RE-ADJUDICATION AND WE DO SO. UNDER THESE CIRCUMSTANCES, THE ISSUES ARE RESTORED TO THE FILE OF THE AO FOR RE- ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE O PPORTUNITY TO SUBSTANTIATE HIS CASE. 6.1 THE FINDINGS OF ASSESSMENT YEAR 2001-02 APPLIES TO THIS ISSUES RAISED IN THE ASSESSMENT YEARS 2002-03, 2003-04, 2004-05, 2005- 06, 2006-07 & 2007-08 AS DIRECTED IN ITA NO.2349 /CHNY/2017 SUPRA. 7. SINCE THE ISSUES AND THE RELEVANT FACTS INVOLVE D IN REMAINING APPEALS IN THE CASE OF SMT.N.AROCKIAM FOR ASSESSMEN T YEARS 2005-06, 2006-07, 2007-08, AND IN THE CASE OF SMT.ESTHER JA YARANI FOR ASSESSMENT YEARS2002-03, 2003-04, 2004-05, 2005-06, 2006-07 & 2007-08 ARE IDENTICAL, THEREFORE, THE DECISION REA CHED BY US IN THE SHRI N.MARIA ROBIN SMT.N.AROCKIAM SMT.ESTHER JAYARANI :- 6 -: APPEAL NO.2349/CHNY/2017 FOR ASSESSMENT YEAR 2001-0 2, SHALL EQUALLY APPLY TO THE REMAINING APPEALS OF THE ASSES SEE ALSO. ACCORDINGLY, ALL THE APPEALS OF THE TWO ASSESSEES I .E. SMT.N.AROCKIAM & SMT.ESTHER JAYARANI DESERVE TO BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, ALL THE APPEALS OF THE THREE ASSE SSEES MENTIONED IN THE TITLE ARE PARTLY ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 28 TH JUNE, 2018, AT CHENNAI. SD/ - SD/ - ( ) (S. JAYARAMAN) # !$ /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) % !$ / JUDICIAL MEMBER & / CHENNAI ' / DATED: 28 TH JUNE, 2018. K S SUNDARAM ( ) *+ , +$ / COPY TO: 1 . / APPELLANT 3. ( ( - () / CIT(A) 5. +01 23 / DR 2. / RESPONDENT 4. ( ( - / CIT 6. 145 6 / GF