R.Anbukarasu (HUF), Gudiyatham V. ACIT, CHENNAI

ITA 282/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9419 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 22-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 02-02-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: T VASUDEVAN
• Keywords: Search and seizure; Opportunity of being heard
• Section: 143(3); 153A; 132

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I.T.A.NO S . 282 AND 283 /MDS/2015 ASSESSMENT YEAR S :200 4 - 0 5 AND 2006 - 07 R. ANBUKARASU (HUF), NO.8, PERIABBU MUDALI STREET, GUDIATHAM 632 602. [PAN: A A HHM2008K ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , C ENTRAL CIRCLE II (2) , CHE NNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI T. VASUDEVAN , ADVOCATE / RESPONDENT BY : SHRI A.V. SREEKANTH , J CIT / DATE OF HEARING : 2 2 . 0 3 .201 6 / DATE OF P RONOUNCEMENT : 29 . 0 4 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) II , CHENNAI , DATED 3 1 . 1 0 .20 1 4 RE LEVANT TO THE ASSESSMENT YEAR S 200 4 - 0 5 AND 2006 - 07 AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . 2. BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SEARCH AND SEIZURE UNDER SECTION 132 OF THE ACT ON 18.01.200 6. THE ASSESSEE HAS BEEN EARNING I.T.A. NO S . 282 & 283 /M/ 15 2 INCOME FROM RUNNING CINEMA THEATRES BY NAME M/S. LITTLE LAKSHMI THEATRE AND MAHALAKSHMI THEATRE AT GUDIYATHAM. AS A RESULT OF SEARCH AND SEIZURE OPERATION AND POST SEARCH ENQUIRY, THE ASSESSMENT HAS BEEN FRAMED UNDER SECTIO N 153A R.W.S. 143(3) OF THE ACT ON 24.12.2007 BY ASSESSING THE INCOME AT . 75,91,140/ - AS AGAINST THE RETURNED INCOME OF . 3,25,000/ - FOR THE ASSESSMENT YEAR 2006 - 07 AND FOR THE ASSESSMENT YEAR 2004 - 05, THE ASSESSING OFFICER ASSESSED THE INCOME AT . 80,60, 610/ - AS AGAINST THE RETURNED INCOME OF . 1,05,160/ - . THE ADDITIONS WERE ON ACCOUNT OF SUPPRESSION IN THEATRE COLLECTION, CANTEEN RECEIPTS, UNACCOUNTED CASH, JEWELLERY, CAPITATION FEE PAID BY THE ASSESSEE, COST OF CONSTRUCTION AND DEEMED PROFIT UNDER SECTI ON 28(IV), ETC. 3. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) VIDE ORDER DATED 21.06.2010 ALLOWED PARTIAL RELIEF TO THE ASSESSEE, WHEREBY THE INCOME WAS REVISED AT . 10,27,427/ - FOR THE ASSESSMEN T YEAR 2004 - 05 AND . 43,88,276/ - FOR THE ASSESSMENT YEAR 2006 - 07. AGAINST THE ORDER OF THE LD. CIT(A), THE DEPARTMENT PREFERRED FURTHER APPEAL BEFORE THE ITAT AND THE ITAT VIDE ITS ORDER IN I.T.A. NOS. 1978 TO1982/MDS/2010 & CO NOS. 85 TO 90/MDS/2011 DATED 29.04.2013 DISMISSED THE APPEAL OF THE REVENUE. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND THE ASSESSEE WAS SHOW - CAUSED AS TO WHY PENALTY UNDER SECTION 271(1)(C) OF THE ACT SHOULD NOT BE LEVIED ON THE INCOME I.T.A. NO S . 282 & 283 /M/ 15 3 CONCEALED BY THE ASSESSEE WHICH WA S UPHELD BY THE APPELLATE AUTHORITIES. EXCEPT SEEKING A SINGLE SHORT ADJOURNMENT, THE ASSESSEE NEITHER REPLIED TO THE PENALTY NOTICE NOR APPEARED FOR HEARING BEFORE THE ASSESSING OFFICER. SINCE THERE WAS NO EXPLANATION TO SUBSTANTIATE THAT THE ASSESSEE HAS NOT CONCEALED ANY INCOME IN RESPECT OF UNACCOUNTED CASH, UNACCOUNTED JEWELLERY AND CAPITATION FEES PAID, THE ASSESSING OFFICER LEVIED PENALTY TO THE TUNE OF . 15,90,000/ - FOR THE ASSESSMENT YEAR 2004 - 05 AND . 13,80,000/ - FOR THE ASSESSMENT YEAR 2006 - 07. 4. AGAINST THE PENALTY ORDERS, THE ASSESSEE FILED APPEALS BEFORE THE LD. CIT(A). THE ASSESSEE WAS AFFORDED SUFFICIENT OPPORTUNITY OF BEING HEARD AND SINCE THERE WAS NO REPRESENTATION FROM ASSESSEE S SIDE, THE LD. CIT(A) DISMISSED BOTH THE APPEALS FILED B Y THE ASSESSEE. 5. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL FOR BOTH THE ASSESSMENT YEARS. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT WITHOUT CONSIDERING THE EXPLANATIONS FROM THE ASSESSEE, THE APPEALS FILED BEFORE THE LD. CIT(A) WAS DISMISSED. THEREFORE, HE PRAYED THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD TO FILE HIS EXPLANATION BEFORE THE LD. CIT(A) . 6. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). T HE LD. DR HAS FURTHER ARGUED THAT BUT FOR SEARCH AND SEIZURE I.T.A. NO S . 282 & 283 /M/ 15 4 OPERATION UNDER SECTION 132 OF THE ACT, THE CONCEALMENTS WOULD NOT HAVE COME INTO LIGHT AND PRAYED THAT THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT SHOULD BE CONFIRMED, 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AGAINST THE ADDITIONS CONFIRMED BY THE APPELLATE AUTHORIT IES. SINCE THERE WAS NO EXPLANATION AGAINST THE NOTICE SERVED ON THE ASSESSEE, THE ASSESSING OFFICER HAS LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR BOTH THE ASSESSMENT YEARS. WHEN THE ASSESSEE PREFERRED APPEALS BEFORE THE LD. CIT(A) AGAINST THE PENALTY ORDERS, THE LD. CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO EXPLANATION OR REPRESENTATION FROM THE ASSESSEE. SO, IT IS EVIDENT FROM THE ORDERS OF AUTHORITIES BELOW THAT THE LEVY OF PENALTY AND CONFIRMATION OF PE NALTY ARE PURELY BASED ON NON - REPRESENTATION FROM ASSESSEE S SIDE . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS PRAYED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO FILE HIS EXPLANATION BEFORE THE LD. CIT(A). UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT TO MEET THE ENDS OF JUSTICE, IT WOULD BE APPROPRIATE TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO FILE HIS EXPLANATION BEFORE THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER PASSE D BY THE LD. CIT(A) FOR BOTH THE ASSESSMENT YEARS AND I.T.A. NO S . 282 & 283 /M/ 15 5 DIRECT THE ASSESSING OFFICER TO DECIDE BOTH THE APPEALS AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FILE EXPLANATION AND ANY OTHER DOCUMENT, IF ANY AND HE SHOULD NOT SEEK ADJOURNMENT FOR JUST CAUSE. THUS, THE GROUND RAISED BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 29 TH APRIL , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 29. 0 4 .201 6 VM/ - / COPY TO: 1. / A PPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.