Kalimuthu Harichandran, CHENNAI V. ACIT Non Corporate Circle 4(1), CHENNAI

ITA 2672/CHNY/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5232 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRABHU MUKUNTH ARUN KUMAR JR
• Assessee Lawyers: KALIMUTHU HARICHANDRAN
• Keywords: Period of limitation; Difference of opinion; Revised return
• Section: 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . . . , . , ! BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NOS.2671 & 2672/CHNY/2017 ( / ASSESSMENT YEARS: 2012-13 & 2013-14) SHRI KALIMUTHU HARICHANDRAN, NEW NO. 805, OLD NO.665B, SOUNDARPANDIAN NAGAR, TIRUVOTTRIYUR, CHENNAI 600 019. VS THE ASST. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 4(1), CHENNAI. PAN: ABBPH9112N ( /APPELLANT) ( /RESPONDENT) /APPELLANT BY : SHRI KALIMUTHU HARICHANDRAN, ASSESSEE /RESPONDENT BY : SHRI PRABHU MUKUNTH ARUNKUMAR, JR. STANDING COUNSEL /DATE OF HEARING : 03.04.2018 /DATE OF PRONOUNCEMENT : 09.04.2018 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, BOTH DATED 24.08.2017 IN ITA NO.215/CIT(A)-5/2016-17 & ITA NO.216/CIT(A)-5/2016- 17 FOR THE ASSESSMENT YEARS 2012-13 & 2013-14 RESPECTIVELY PAS SED U/S.250(6) R.W.S. 144 & 147 OF THE ACT. 2 ITA NOS. 2671 & 2672/CHNY/2017 2.1 ASSESSMENT YEAR 2012-13: THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS APPEAL FOR THE ASSESSMENT YEAR 2012-13:- A. THE ORDER OF THE APPELLATE AUTHORITY IS ARBITRAR Y AND INCOMPATIBLE IN LAW. B. THE APPELLATE AUTHORITY OUGHT TO HAVE APPRECIATE D THE REASONS ADDUCED IN THE AFFIDAVIT FOR CONDONATION OF DELAY. C. THE APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THAT THE APPELLANT WAS AN INDIVIDUAL AND DID NOT HAVE ANY EXPOSURE OF THE APP EAL PROCEEDINGS UNDER THE IT ACT, 1961. D. THE APPELLANT IS EXPOSED TO THESE TYPES OF DEMAN DS MADE BY THE INCOME TAX AUTHORITIES FOR THE FIRST TIME AND THEREFORE, I S NOT FAMILIAR WITH THE APPEAL REMEDIES. E. THE APPELLANT STATES THE APPELLATE AUTHORITY INS TEAD OF APPRECIATING THE INNOCENCE OF THE APPELLANT IN NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION, RESTORED TO TECHNICALITIES IN DISMISSIN G THE APPEAL ON THE GROUND OF LIMITATION. THE INCOME TAX SEARCH CREATED PANIC AMONG THE FAMILY MEMBERS RESULTING INTO DIFFERENCE OF OPINION DEVELO PED AMONG THE APPELLANT AND HIS WIFE. THIS HAS ULTIMATELY AFFECTED THE HEAL TH OF THE APPELLANT RESULTING INTO MENTAL IMBALANCE. AT TIMES, THE APPE LLANT WAS NOT STABLE AND UNDERWENT MEDICAL TREATMENT WITH PSYCHIATRIST AND A LSO FOR NERVOUS DISORDER. THE APPELLANT DID NOT MENTION THE ABOVE F ACTS BEFORE THE APPELLATE AUTHORITY OUT OF INTROVERTEDNESS. F. THE APPELLANT SUBMIT FOR THE ABOVE REASONS ONLY, APPELLANT WERE NOT IN A POSITION TO RESPOND TO THE NOTICES ISSUED BY THE AO . G. THE APPELLANT PRAY THAT IF HE IS GIVEN AN OPPORT UNITY TO SUBMIT THE RECORDS BY THIS HON'BLE TRIBUNAL, HE WOULD DO SO WI THIN THE TIME FRAME PRESCRIBED BY THE TRIBUNAL AND SUBMIT THE SAME BEFO RE THE AO. H. THE APPELLANT PRAY THAT THIS HON'BLE TRIBUNAL MA Y PLEASE CONSIDER THE CASE OF THE APPELLANT IN A SYMPATHETIC WAY AND SET ASIDE THE ORDER OF THE APPELLATE AUTHORITY BY GRANTING ONE MORE OPPORTUNIT Y TO SUBMIT THE 3 ITA NOS. 2671 & 2672/CHNY/2017 DOCUMENTS BEFORE THE AO. AS THE IMMOVABLE PROPERTY IS UNDER THE ATTACHMENT OF THE DEPARTMENT, THE INTEREST OF THE R EVENUE IS ALSO PROTECTED AND NO PREJUDICE WOULD BE CAUSED TO THE DEPARTMENT IF THE APPELLANT IS GIVEN AN OPPORTUNITY TO PRODUCE THE DOCUMENTS BEFOR E THE AO. I. THE APPELLANT RESERVE THEIR RIGHT TO RAISE ADDIT IONAL GROUNDS DURING THE TIME OF APPEAL HEARING. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE HON'BLE APPELLATE TRIBUNAL MAY BE PLEASED TO SET ASIDE THE ORDER PASSED BY THE APPELL ATE AUTHORITY IN APPEAL NO. ITA 215/CIT(A)-5/2016-17 DATED 24.08.2017 AND P ERMIT THE APPELLANT TO PRODUCE THE DOCUMENTS BEFORE THE AO AND THUS REN DER JUSTICE. 2.2 ASSESSMENT YEAR 2013-14: THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS APPEAL FOR THE ASSESSMENT YEAR 2013-14:- A. THE ORDER OF THE APPELLATE AUTHORITY IS ARBITRAR Y AND INCOMPATIBLE IN LAW. B. THE APPELLATE AUTHORITY OUGHT TO HAVE APPRECIATE D THE REASONS ADDUCED IN THE AFFIDAVIT FOR CONDONATION OF DELAY. C. THE APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THE DELAY OF SEVEN DAYS OR NINE DAYS IN FILING THE APPEAL IS A MEAGER DELAY WH ICH ANY JUDICIAL FORUM WOULD CONDONE IT. D. THE APPELLATE AUTHORITY HAS PASSED THE SIMILAR O RDER FOR THE ASSESSMENT YEAR 2013-14 ADOPTING THE VERY SAME REASONS IN APPE AL NO. ITA 216/CIT(A)-5/2016-17 DATED 24.08.2017. THE APPELLAT E AUTHORITY HAS SIMPLY FOLLOWED THE ORDER PASSED FOR THE ASSESSMENT YEAR 2 013-14 FOR THIS YEAR ALSO MECHANICALLY WITHOUT CONSIDERING THE ACTUAL PERIOD OF DELAY. E. THE APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THAT THE APPELLANT WAS AN INDIVIDUAL AND DID NOT HAVE ANY EXPOSURE OF THE APPEAL PROCEEDINGS UNDER THE IT ACT, 1961. F. THE APPELLANT IS EXPOSED TO THESE TYPE OF DEMAND S MADE BY THE INCOME TAX AUTHORITIES FOR THE FIRST TIME AND THEREFORE, I S NOT FAMILIAR WITH THE APPEAL REMEDIES. 4 ITA NOS. 2671 & 2672/CHNY/2017 G. THE APPELLANT STATES THE APPELLATE AUTHORITY INS TEAD OF APPRECIATING THE INNOCENCE OF THE APPELLANT IN NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION, RESTORED TO TECHNICALITIES IN DISMISSIN G THE APPEAL ON THE GROUND OF LIMITATION. THE INCOME TAX SEARCH CREATED PANIC AMONG THE FAMILY MEMBERS RESULTING INTO DIFFERENCE OF OPINION DEVELO PED AMONG THE APPELLANT AND HIS WIFE. THIS HAS ULTIMATELY AFFECTED THE HEAL TH OF THE APPELLANT RESULTING INTO MENTAL IMBALANCE. AT TIMES, THE APPE LLANT WAS NOT STABLE AND UNDERWENT MEDICAL TREATMENT WITH PSYCHIATRIST AND A LSO FOR NERVOUS DISORDER. THE APPELLANT DID NOT MENTION THE ABOVE F ACTS BEFORE THE APPELLATE AUTHORITY OUT OF INTROVERTEDNESS. H. THE APPELLANT SUBMIT FOR THE ABOVE REASONS ONLY, APPELLANT WERE NOT IN A POSITION TO RESPOND TO THE NOTICES ISSUED BY THE AO . I. THE APPELLANT PRAY THAT IF HE IS GIVEN AN OPPORT UNITY TO SUBMIT THE RECORDS BY THIS HON'BLE TRIBUNAL, HE WOULD DO SO WITHIN THE TIME FRAME PRESCRIBED BY THE TRIBUNAL AND SUBMIT THE SAME BEFORE THE AO. J. THE APPELLANT PRAY THAT THIS HON'BLE TRIBUNAL MA Y PLEASE CONSIDER THE CASE OF THE APPELLANT IN A SYMPATHETIC WAY AND SET ASIDE THE ORDER OF THE APPELLATE AUTHORITY BY GRANTING ONE MORE OPPORTUNIT Y TO SUBMIT THE DOCUMENTS BEFORE THE AO. AS THE IMMOVABLE PROPERTY IS UNDER THE ATTACHMENT OF THE DEPARTMENT, THE INTEREST OF THE R EVENUE IS ALSO PROTECTED AND NO PREJUDICE WOULD BE CAUSED TO THE DEPARTMENT IF THE APPELLANT IS GIVEN AN OPPORTUNITY TO PRODUCE THE DOCUMENTS BEFOR E THE AO BY SET ASIDE THE ORDER OF THE APPELLATE AUTHORITY. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE HON'BLE APPELLATE TRIBUNAL MAY BE PLEASED TO SET ASIDE THE ORDER PASSED BY THE APPELL ATE AUTHORITY IN APPEAL NO. ITA 216/CIT(A)-5/2016-17 DATED 24.08.2017 AND P ERMIT THE APPELLANT TO PRODUCE THE DOCUMENTS BEFORE THE AO AND THUS REN DER JUSTICE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL CARRYING ON BUSINESS IN THE NAME OF M/S. SHRI HARICHANDRA AGENCIES AS WHOLESALE DEALER IN EDIBLE PROVISIONS ITEMS, FILED HIS RETURN OF INCOME FOR THE ASSESSMEN T YEAR 2012-13 ON 03.10.2012 ADMITTING TOTAL INCOME OF RS.43,39,71 2/-. FURTHER 5 ITA NOS. 2671 & 2672/CHNY/2017 THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013-14 ON 16.12.2016 ADMITTING A LOSS OF RS.1 ,83,311/-. THEREAFTER A REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 18.12.2016 ADMITTING LOSS OF RS.4,96,11,710/- WHERE IN THE AMOUNT OF RS.4,94,28,399/- PERTAINS TO THE CLAIM OF BAD DE BTS. IN BETWEEN A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED IN THE AS SESSEES BUSINESS PREMISES ON 13.11.2013. IN THE SCRUTINY AS SESSMENT PROCEEDINGS SINCE THERE WAS NO PROPER RESPONSE FROM THE ASSESSEE, ASSESSMENT ORDER WAS PASSED BY THE LD.AO U/S.144 R.W.S. 147 OF THE ACT FOR THE ASSESSMENT YEAR 2012- 13 ON 28.03.2016 AND FOR THE ASSESSMENT 2013-14 ON 28.12. 2016. THEREAFTER THE ASSESSEE PREFERRED APPEAL BEFORE THE LD.CIT(A) FOR BOTH THE ASSESSMENT YEARS. FOR THE ASSESSMENT YEAR 2012-13, THE LD.CIT(A) OBSERVED THAT THE ASSESSEE OUGHT TO HAVE FILED THE APPEAL ON OR BEFORE 23.05.2016, HOWEVER THE APPEAL WAS FILED ON 12.09.2016. SIMILARLY FOR THE ASSESSMENT YEAR 2013- 14, IT WAS OBSERVED BY THE LD.CIT(A) THAT THE ASSESSEE SHOULD HAVE FILED THE APPEAL ON OR BEFORE 07.03.2017, HOWEVER THE APPEAL WAS FILED ON 15.03.2017. SINCE THE ASSESSEE HAD NOT EXPLAINED TH E REASONS FOR THE DELAY IN FILING THE APPEALS FOR BOTH THE ASSESS MENT YEARS, THE 6 ITA NOS. 2671 & 2672/CHNY/2017 LD.CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE BY NOT CONDONING THE DELAYL. 4. BEFORE US THE ASSESSEE SUBMITTED THAT HE WAS UN DERGOING PSYCHIATRIC AND NERVOUS DISORDER TREATMENT DUE TO W HICH THE DELAY HAD OCCURRED. HE THEREFORE PLEADED THAT ONE MORE OP PORTUNITY MAY BE PROVIDED SO THAT HE CAN PRESENT THE APPEAL BEFOR E THE LD.CIT(A) AS THE HE HAS A FAIR CHANCE TO SUCCEED IN THE APPEA L. THE LD.DR STRONGLY OBJECTED TO THE SUBMISSION OF THE ASSESSEE . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE HAS SATISFACTORILY EXPLAINED BEFORE US THE REASON FOR THE DELAY IN FIL ING THE APPEALS BEFORE THE LD.CIT(A) WHICH WAS DUE TO HIS SERIOUS M EDICAL CONDITION. THEREFORE CONSIDERING THE PLIGHT OF THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT THE DELAY IN FILING THE APPEALS BEFORE THE LD.CIT(A) REQUIRES TO BE CONDONED. ACCORDINGLY WE H EREBY CONDONE THE DELAY IN FILING THE APPEALS BY THE ASSE SSEE BEFORE THE LD.CIT(A) FOR BOTH THE ASSESSMENT YEARS AND HEREBY REMIT BOTH THE APPEALS BACK TO THE FILE OF LD.CIT(A) FOR HEARING T HE APPEALS ON MERITS. AT THE SAME TIME, WE ALSO CAUTION THE ASSES SEE TO PROMPTLY 7 ITA NOS. 2671 & 2672/CHNY/2017 CO-OPERATE BEFORE THE LD.CIT(A) IN HIS PROCEEDINGS IN ORDER TO EXPEDITE HIS ORDER FAILING WHICH THE LD.CIT(A) SHAL L BE AT LIBERTY TO PASS APPROPRIATE ORDER BASED ON THE MATERIALS ON RE CORD. 6. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED ON THE 09 TH APRIL, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER '# /CHENNAI, $% /DATED 09 TH APRIL, 2018 RSR % '( )( /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. , ( )/CIT(A) 4. , /CIT 5. (-. / /DR 6. .0 /GF