Sangeetha Jain, CHENNAI V. ITO Non Corporate Ward 6(3), CHENNAI

ITA 2675/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5603 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: M KARUNAKARAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI . . . , , & BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.2675/CHNY/2018 ' ' /ASSESSMENT YEAR: 2010-11 SMT. SANGEETHA JAIN, NO.14, KASI CHETTY STREET, SOWCARPET, CHENNAI-600 079. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD-6(3), CHENNAI-34. [PAN: AE PPS 7408 M ] ( * /APPELLANT) ( +,* /RESPONDENT) * - / APPELLANT BY : MR.M.KARUNAKARAN, ADV. +,* - /RESPONDENT BY : MR.AR.V.SREENIVASAN, JCIT - /DATE OF HEARING : 17.01.2019 - /DATE OF PRONOUNCEMENT : 30.01.2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DATED 29.06.2018, FOR THE AY 2010-11. 2. AT THE OUTSET, THERE IS A DELAY OF SEVEN DAYS IN FILING OF THE PRESENT APPEAL. THE ASSESSEE PRAYED FOR CONDONATION OF DEL AY BY FILING AFFIDAVIT ITA NO.2675/CHNY/2018 :- 2 -: STATING THAT THE DELAY HAS OCCURRED ON ACCOUNT OF M ISPLACING THE ORDER OF THE CIT(A). THE AVERMENTS MADE IN THE AFFIDAVIT HA VE NOT BEEN CONTROVERTED BY THE REVENUE. UNDER THESE CIRCUMSTA NCES, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APP EALS) IN CONFIRMING THE ADDITION OF RS.1,01,250/- MADE IN THE ASSESSMENT ORDER IS ILLEG AL, ARBITRARY, AGAINST THE WEIGHT OF EVIDENCE AND ALL PROBABILITIES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DECIDING THE APPEAL IN EX- PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GIVEN ONLY ONE HEARING OF THE APPEAL A ND THE APPELLANT COULD NOT CONTACT THE AUTHORIZED REPRESENTATIVE ON THE SAID DATE AND THER EFORE NO ONE COULD REPRESENT THE CASE. 3. THE AUTHORITIES BELOW ERRED IN ADDING RS.1,01,25 0/- BEING THE PROFIT IN COMMODITY TRADING DONE WITH M/S.DIGNITY TIEUP WHEN THE APPELLA NT HAD NOT DONE ANY TRANSACTIONS THROUGH THE SAID BROKER AND THEY HAVE NOT ALSO PROV IDED ANY MATERIAL OR DOCUMENT IN SUPPORT OF THE CONTENTION THAT THE APPELLANT HAD DO NE COMMODITY TRADING WITH THE SAID BROKER. 4. THE AUTHORITIES BELOW OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD OFFERED A SUM OF RS.2,46,776.69 AS PROFIT FROM COMMODITY TRADING DON E THROUGH THE BROKER M/S.SLA COMMODITIES AND THAT NO SUCH TRANSACTION WAS DONE T HROUGH ANY OTHER BROKER MUCH LESS M/S.DIGNITY TIEUP AS ALLEGED IN THE ASSESSMENT ORDER . 5. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER OUGHT TO HAVE PROVIDED THE DOCUMENTS RELIED ON IN THE ASSESSMENT ORDER TO THE APPELLANT AND THE FAILURE TO DO SO RENDER THE ASSESSMENT AS INVALID DUE TO NON GRANTING OF REASON ABLE OPPORTUNITY AND FAIR PLAY BEFORE MAKING THE ASSESSMENT. 6. THE APPELLANT THEREFORE PRAYS THAT THE ADDITION OF RS.1,01,250/- MADE MAY BE DELETED AND JUSTICE RENDERED. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS AN INDIVIDUAL. THE AO BASED ON THE INFORMATION RECEIVED FROM INVES TIGATION WING, KOLKATTA, STATING THAT CLIENTS / MEMBERS OF NMCE (N ATIONAL MULTI COMMODITY EXCHANGE) WERE FOUND TO BE INVOLVED IN CR EATING ARTIFICIAL VOLUME AND SUSPECTED EVASION OF INCOME TAX, ISSUED A NOTICE U/S.148 DATED 30.03.2017 FOR THE AY 2010-11. IN RESPONSE T O THE NOTICE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 20.05.2017 A DMITTING INCOME OF ITA NO.2675/CHNY/2018 :- 3 -: RS.2,89,060/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE AO AT A TOTAL INCOME OF RS.3,90,31 0/- VIDE ORDER DATED 22.12.2017 PASSED U/S.143(3) R.W.S.147 OF THE INCOM E TAX ACT, 1961. WHILE DOING SO, THE AO MADE ADDITION OF RS.1,01,250 /- ON ACCOUNT OF THE PROFIT ALLEGED TO HAVE BEEN MADE BY THE ASSESSEE BY TRADING IN COMMODITY WITH M/S.DIGNITY TIEUP. IT WAS FURTHER NOTED THAT IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED, THE ASSESSEE WAS NOT RESPONDED . 5. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD.CIT(A). EVEN BEFORE THE LD.CIT(A), NO ONE HAS APPEARED. HE NCE, THE LD.CIT(A) DISMISSED THE APPEAL EX-PARTE ORDER. 6. BEING AGGRIEVED, THE ASSESSEE IS BEFORE US. LD. COUNSEL SUBMITTED THAT ON ACCOUNT OF NON-RECEIPT OF NOTICE OF HEARING FROM THE LD.CIT(A), APPEARANCE COULD NOT BE CAUSED. HE FURTHER SUBMITT ED THAT NO EVIDENCE OR DOCUMENTARY EVIDENCE WAS SHOWN TO THE ASSESSEE B Y THE AO IN SUPPORT OF THE ALLEGATION THAT THE ASSESSEE IS INVOLVED IN COMMODITIES TRADING WITH M/S.DIGNITY TIEUP. HE FURTHER SUBMITTED THAT THERE ARE NO DEALINGS WITH THE SAID COMPANY. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS PLACED ON RECORD. ITA NO.2675/CHNY/2018 :- 4 -: 8. IN OUR CONSIDERED OPINION, THE MATTER REQUIRES T O BE REMANDED BACK TO THE AO WITH A DIRECTION THAT THE ASSESSEE SHOULD BE PROVIDED COPY OF EVIDENCE IN HIS POSSESSION IN SUPPORT OF ALLEGATION THAT THE ASSESSEE IS TRADING IN COMMODITIES WITH THE SAID COMPANY. ACCO RDINGLY, WE REMIT THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE OF BEIN G HEARD. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THE 30 TH JANUARY, 2019, IN CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER /CHENNAI, 3 /DATED: 30 TH JANUARY, 2019. TLN - +45 65 /COPY TO: 1. * /APPELLANT 4. 7 /CIT 2. +,* /RESPONDENT 5. 5 + /DR 3. 7 ( ) /CIT(A) 6. ' /GF