Late Shri Dasari Narayana Rao Rep by L/H Shri Dasari Arun Kumar, Hyderabad V. ITO (OSD) Non Corporate Circle 20, CHENNAI

ITA 2378/CHNY/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0866 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 20-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN CA SHRI R CLEME
• Keywords: Additional evidence
• Section: 271(1)(c); 80G

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' ,$ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.2377 & 2378/CHNY/2018 ' (' / ASSESSMENT YEARS :2005-06 & 2011-12 LATE SHRI DASARI NARAYANA RAO, REPRESENTED BY L/H SHRI DASARIARUN KUMAR, 900A, ROAD NO.46, JUBLLIE HILLS, FILM NAGAR, HYDERABAD 500 033. PAN : AADPN 2804 Q V. THE INCOME TAX OFFICER (OSD) / THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 20 CHENNAI. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. B. RAMAKRISHNAN, CA ,-*+./ / RESPONDENT BY : SHRI R. CLEMENT RAMESH KUMAR, AD DL.CIT 0 .1$ / DATE OF HEARING : 14.11.2018 2!( .1$ / DATE OF PRONOUNCEMENT : 16.11.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : I.T.A. NO.2377/CHNY/2018 IS FILED AGAINST THE ORD ER OF THE CIT(APPEALS) CONFIRMING THE PENALTY LEVIED UNDER SE CTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') FO R THE ASSESSMENT YEAR 2005-06, WHEREAS, I.T.A. NO.2378/CHNY/2018 IS FILED AGAINST THE ORDER OF THE CIT(APPEALS) FOR REGULAR ASSESSMEN T FOR 2 I.T.A. NOS.2377 & 2378/CHNY/18 ASSESSMENT YEAR 2011-12. THEREFORE, WE HEARD BOTH THE APPEALS OF THE ASSESSEE TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. LETS FIRS TAKE I.T.A. NO.2377/CHNY/2018. 2. SH. B. RAMAKRISHNAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUC TION UNDER SECTION 80G OF THE ACT AND ALSO REMISSION OF LIABIL ITY UNDER SECTION 41(1) OF THE ACT IN RESPECT OF SHRI V. VENKATARAO. IN FACT, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE CLAIMED DED UCTION UNDER SECTION 80G OF THE ACT TO THE EXTENT OF 1,00,000/-. THE ASSESSEE COULD NOT PRODUCE RECEIPT IN RESPECT OF THE PAYMENT MADE TO THE EXTENT OF 10,000/-, THEREFORE, THE ASSESSING OFFICER RESTRICT ED THE DISALLOWANCE TO 50,000/-. IN RESPECT OF REMISSION OF LIABILITY, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSING OFFICER FOUND THAT IT COULD NOT BE RULED OUT THE POSSIBILITY OF BEING A TRADING LIABILITY, THEREFORE, IT IS THE INCOME OF THE ASSESSEE UNDER S ECTION 41(1) OF THE ACT. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE HAS FURNISHED ENTIRE DETAILS AND CLAIMED REMISSION UNDE R SECTION 41(1) OF THE ACT AS DEDUCTION. ACCORDING TO THE LD. REPR ESENTATIVE, MERE CLAIM AFTER FURNISHING ENTIRE DETAILS CANNOT BE CON STRUED AS 3 I.T.A. NOS.2377 & 2378/CHNY/18 FURNISHING INACCURATE PARTICULARS OF INCOME OR CONC EALING ANY PART OF INCOME OF THE ASSESSEE, THEREFORE, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING O FFICER. 3. WE HEARD SHRI R. CLEMENT RAMESH KUMAR, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. THE ASSESSEE CLA IMED DEDUCTION TO THE EXTENT OF 1,00,000/- UNDER SECTION 80G OF THE ACT AND ALSO DEDUCTION IN RESPECT OF REMISSION OF LIABI LITY WITH REGARD TO ONE SHRI V. VENKATARAO. THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT MAKING MERE CLAIM BY FURNISHING ALL PARTICULAR S TO THE ASSESSING OFFICER CANNOT BE CONSTRUED TO BE CONCEALMENT OF IN COME OR FURNISHING INACCURATE PARTICULARS OF INCOME. AS HE LD BY APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) L TD. (2010) 322 ITR 158, A MERE CLAIM IN THE RETURN OF INCOME CANNO T BE CONSTRUED TO BE CONCEALMENT OF INCOME OR FURNISHING INACCURAT E PARTICULARS OF INCOME. IN VIEW OF THIS JUDGMENT OF APEX COURT, TH IS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE AUTHORITIES BELO W. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE PENALTY LEVIED BY THE ASSESSING OFFICER IS DELETED. 4. NOW COMING TO THE ASSESSEES APPEAL IN I.T.A. NO.2378/CHNY/2018. 4 I.T.A. NOS.2377 & 2378/CHNY/18 5. SH. B. RAMAKRISHNAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE FIRST GROUND OF APPEAL IS WITH REGARD TO INTEREST CLAIMED BY THE ASSESSEE TO THE EXTENT OF 8,10,000/-. THE LD. REPRESENTATIVE, DURING THE COURSE OF HEARING, S UBMITTED THAT HE IS NOT PRESSING THIS GROUND. THE LD. REPRESENTATIV E ALSO MADE AN ENDORSEMENT TO THIS EFFECT IN THE GROUNDS OF APPEAL FILED BEFORE THIS TRIBUNAL. IN VIEW OF THE ABOVE, THE GROUND WITH RE GARD TO CLAIM TOWARDS INTEREST IS DISMISSED AS NOT PRESSED. 6. NOW COMING TO ADDITION OF 3,58,00,000/-, 2,90,00,000/- AND 68,00,000/-, THE ASSESSEE HAS FILED ADDITIONAL EVID ENCE BEFORE THE CIT(APPEALS). THE ASSESSEE HAS FILED A COPY OF ACKNOWLEDGEMENT AS PROOF OF FILING ADDITIONAL EVIDE NCE BEFORE THE CIT(APPEALS). INSPITE OF THAT, THE CIT(APPEALS) HA S NOT CONSIDERED THE ADDITIONAL EVIDENCE. THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT WHEN THE ASSESSEE HAS FILED ADDITIONAL EVIDENC E, IT IS FOR THE CIT(APPEALS) TO EXAMINE THE SAME AND DECIDE THE CAS E IN ONE WAY OR OTHER OR TO FORWARD THE ADDITIONAL EVIDENCE TO T HE ASSESSING OFFICER AND CALL FOR HIS REMAND REPORT. UNFORTUNAT ELY, THE CIT(APPEALS) HAS NOT EXERCISED HIS OPTION IN RESPEC T OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. IN THOS E CIRCUMSTANCES, 5 I.T.A. NOS.2377 & 2378/CHNY/18 THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER IN THE INTERES T OF JUSTICE. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW A RE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSES SING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER IN TH E LIGHT OF THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE AND OTHER MATERIAL THAT MAY BE FILED BEFORE THE ASSESSING OFFICER AND THEREAFTE R DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASO NABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE ASSESSEES APPEAL IN I.T.A. NO.2377/CHNY/18 IS ALLOWED AND THE APPEAL IN I.T.A. NO.2378/CHNY/2018 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 16 TH NOVEMBER, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 16 TH NOVEMBER, 2018. KRI. 6 I.T.A. NOS.2377 & 2378/CHNY/18 . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-14, CHENNAI-34 4. PRINCIPAL CIT-10, CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.