Shri V.R. Gunasekaran, Hyderabad V. ITO, Villupuram

ITA 2536/CHNY/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5269 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-02-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RU GEORGE
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . . . , . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NOS.2534 TO 2538/CHNY/2016 ( / ASSESSMENT YEARS: 2007-08 TO 2011-12) SHRI V.R. GUNASEKARAN, V.M.R. & CO., 19, GANDHI ROAD, KALLAKURICHI, VILLUPURAM DISTRICT 606 202 VS THE INCOME TAX OFFICER, WARD-2, VILLUPURAM. PAN: AFBPG5233K ( /APPELLANT) ( /RESPONDENT) & ./ I.T.A.NOS.2662/CHNY/2016 ( / ASSESSMENT YEARS: 2011-12) THE INCOME TAX OFFICER, WARD-2, VILLUPURAM. VS SHRI V.R. GUNASEKARAN, V.M.R. & CO., 19, GANDHI ROAD, KALLAKURICHI, VILLUPURAM DISTRICT 606 202 PAN: AFBPG5233K ( /APPELLANT) ( /RESPONDENT) /ASSESSEE BY : SHRI C.P. RAMASWAMY, ADVOCATE /REVENUE BY : SMT. RUBY GEORGE, CIT ! /DATE OF HEARING : 13.02.2018 '# ! /DATE OF PRONOUNCEMENT : 26.04.2018 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX 2 ITA NO. 2534 TO 2538 & 2662/CHNY/2016 (APPEALS)-PUDUCHERRY, DATED 27.06.2016 IN ITA NO.63 8/CIT(A)- PDY/2013-14, ITA NO.639/CIT(A)-PDY/2013-14, & 640/C IT(A)- PDY/2013-14 AND DATED 28.06.2016 IN ITA NO.545/CIT( A)- PDY/2013-14 & 030/CIT(A)-PDY/2015-16 FOR THE ASSESS MENTS YEAR 2007-08, 2008-09 2009-10 AND 2010-11 & 2011-12 RESPECTIVELY ALL PASSED U/S.250(6) R.W.S. 143(3) & 147 OF THE ACT. THE REVENUE HAS ALSO RAISED AN APPEAL AGAINST THE O RDER OF THE LD.CIT(A) FOR THE ASSESSMENT YEAR 2011-12. 2. ASSESSEES APPEAL:- THE ASSESSEE HAS RAISED SEVERAL IDENTICAL GROUNDS I N ITS APPEALS AND THEY ARE BRIEFLY STATED HEREUNDER FOR ADJUDICAT ION:- I. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITI ON MADE BY THE LD.AO AMOUNTING TO RS.24,26,000/- AS UNEXPLA INED INVESTMENT IN VMR COMPLEX, KALLAKURICHI FOR THE ASSESSMENT YEAR 2007-08. II. THE LD.CIT(A) HAS ERRED IN ASSESSING THE PROFIT ON SALE OF PLOTS AS RS.10,44,280/-, RS.32,96,300/-, RS.9,04,42 0/- FOR THE ASSESSMENT YEARS 2007-08, 2008-09 & 2010-11 RESPECTIVELY ON ESTIMATED BASIS. 3 ITA NO. 2534 TO 2538 & 2662/CHNY/2016 III. THE LD.CIT(A) HAS ERRED IN PARTLY CONFIRMING T HE ORDER OF THE LD.AO WHO HAD ASSESSED THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AS UNEXPLAINED INCOME FOR THE ASSESSMENT YEARS 2007-08, 2008-09, 2009-10, 2010-11 & 2011-12. IV. THE LD.CIT(A) HAS ERRED IN SUSTAINING THE ADDIT ION OF RS.31,75,540/- AS UNEXPLAINED INVESTMENT U/S.69B OF THE ACT BY ADOPTING WRONG METHOD OF TELESCOPING OF INCO ME FOR THE ASSESSMENT YEAR 2011-12. 3. REVENUES APPEAL :- THE REVENUE HAS RAISED THE FOLLOWING GROUND IN IT S APPEAL FOR THE ASSESSMENT YEAR 2011-12:- THE LD.CIT(A) HAS ERRED IN ALLOWING THE TELESCOPI NG BENEFIT OF RS.49,14,460/- AND THEREBY SUSTAINING THE ADDITI ON OF RS.31,75,540/- AS AGAINST THE ADDITION OF RS.80,90, 000/- MADE BY THE LD.AO. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL ENGAGED IN REAL ESTATE BUSINESS AND ALSO EARNED INCOME AS PARTNER OF A PARTNERSHIP FIRM. A SURVEY U/S.133A OF 4 ITA NO. 2534 TO 2538 & 2662/CHNY/2016 THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES OF T HE ASSESSEE ON 13.07.2010, THEREAFTER THE ASSESSMENT WAS REOPEN ED FOR THE ASSESSMENT YEAR 2007-08, 2008-09, 2009-10, 2010-11 & 2011- 12 WHEREIN THE LD.AO MADE SEVERAL ADDITIONS WHICH W ERE PARTLY SUSTAINED BY THE LD.CIT(A), AGGRIEVED BY WHICH THE ASSESSEE AND THE REVENUE ARE IN APPEAL BEFORE US FOR THE REL EVANT ASSESSMENT YEARS. 5. AT THE OUTSET THE LD.AR SUBMITTED BEFORE US THAT ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE IN ORDER TO PRESENT THE REQUISITE DOCUMENTS BEFORE THE LD.AO WHICH HE I S IN NOW POSSESSION OFF AND SUBMITTED BEFORE THE BENCH FOR T HE FIRST TIME. THE LD.AR FURTHER PLEADED THAT THE ASSESSEE HAS A F AIR CHANCE TO SUCCEED IN HIS APPEAL AND IF ANOTHER OPPORTUNITY IS NOT PROVIDED IT WOULD BE MISCARRIAGE OF JUSTICE AND THE ASSESSEE WOULD HAVE TO SUFFER IRREPARABLE LOSS. HENCE IT WAS VEHEMENTLY PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD.AO IN ORDER TO EXAMINE THE FRESH EVIDENCE SUBMIT TED BEFORE THE TRIBUNAL FOR THE FIRST TIME AND THEREAFTER TO P ASS APPROPRIATE ORDER AS PER MERIT AND LAW. THE LD.DR ON THE OTHER HAND VEHEMENTLY OPPOSED TO THE SUBMISSION OF THE LD.AR A ND 5 ITA NO. 2534 TO 2538 & 2662/CHNY/2016 PLEADED THAT THE ORDERS OF THE LD.REVENUE AUTHORITI ES MAY BE CONFIRMED AND THE APPEAL OF THE REVENUE MAY BE HEAR D. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. THE LD.AR HAS PRODUCED BEF ORE US FRESH MATERIALS FOR THE FIRST TIME IN SUPPORT OF HIS CASE . THOUGH WE DO NOT APPRECIATE THE CONDUCT OF THE ASSESSEE, IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT ONE MOR E OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE. ACCORDINGLY WE HEREBY ADMIT THE FRESH EVIDENCE PRODUCED BEFORE US BY THE LD.AR AND REMIT THE MATTER BACK TO THE FILE OF LD.AO FOR DE-N OVA CONSIDERATION. WE ALSO HEREBY DIRECT THE LD.AO TO A DMIT ANY FRESH EVIDENCE PRODUCE BY THE ASSESSEE AND THEREAFT ER DECIDE THE MATTER IN ACCORDANCE WITH MERIT AND LAW. WE ALS O CAUTION THE LD.AR AS WELL AS THE ASSESSEE TO PROMPTLY CO-OPERAT E WITH THE REVENUE IN THEIR PROCEEDINGS IN ORDER TO EXPEDITE T HEIR ORDERS FAILING WHICH THE REVENUE AUTHORITIES SHALL BE AT L IBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH MERIT AND LAW BASED ON THE MATERIALS ON RECORD. SINCE WE HAVE REMITTED BACK TH E APPEALS OF THE ASSESSEE TO THE FILE OF LD.AO, THE APPEAL OF TH E REVENUE IS ALSO REMITTED BACK TO THE FILE OF LD.AO FOR DE-NOVA CONSIDERATION. 6 ITA NO. 2534 TO 2538 & 2662/CHNY/2016 7. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE AS WELL AS THE APPEAL OF THE REVENUE ARE ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED ON THE 26 TH APRIL, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER $% /CHENNAI, &' /DATED 26 TH APRIL, 2018 RSR ' )* +* /COPY TO: 1. /ASSESSEE 2. ./ /REVENUE 3. 0 ( )/CIT(A) 4. 0 /CIT 5. *12 3 /DR 6. 24 /GF