ACIT, CHENNAI V. Shri Dulquer Salmaan, CHENNAI

ITA 2954/CHNY/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1235 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2020
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M SRINIVASA RAO CIT
• Assessee Lawyers: D ANAND
• Keywords: Search and seizure; Corroborative evidences; Set aside
• Section: 153C; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . , ! , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER & SHRI S.JAYARAMAN, ACCOUNTANT MEMBER I.T.A .NO. 2954 /CHNY/ 2016 ASSESSMENT YEAR : 2011-12 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), CHENNAI 34. VS. SHRI DULQUER SALMANN , NEW NO.5/OLD NO.7, GREENWAYS ROAD EXTN., ANNAMALAI PURAM, CHENNAI 600 028. [ PAN AJIPD 2210 L] ( '# / APPELLANT) ( $%'# /RESPONDENT) / APPELLANT BY : MR.M.SRINIVASA RAO,CIT D.R /RESPONDENT BY : MR.D.ANAND,ADVOCATE ! / DATE OF HEARING : 05 - 03 - 20 20 '#$% ! / DATE OF PRONOUNCEMENT : 29 - 05 - 20 20 &' / O R D E R PER S.JAYARAMAN, ACCOUNTANT MEMBER THE REVENUE FILED THIS APPEAL AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-18, CHENNAI IN ITA NO.140/14-15, DATED 28.07.2016 FOR THE ASSESSMENT Y EAR 2011-12. ITA NO.2954/CHNY/2016 :- 2 -: 2. SHRI DULQUER SALMANN , S/O.SRI MAMMOOTY, THE ASSESSEE IS AN INDIVIDUAL AND CONSEQUENT TO SEARCH AND SEIZURE OPE RATIONS CONDUCTED UNDER SECTION 132 OF THE ACT AT HIS PREMISES ON 22. 07.2011, THE ASSESSEE FILED HIS RETURN OF INCOME IN RESPONSE TO THE NOTICES ISSUED UNDER SECTION 153C READ WITH SECTION 153A. DURING THE COURSE OF ASSESSMENT, THE A.O. FOUND THAT OUT OF .12,83,000/- AS PROFESSIONAL RECEIPT, THE ASSESSEE ADMITTED .8,59,360/- AS INCOME. IN THE ABSENCE OF PROFIT AND LOSS ACCOUNT AND OTHER EVIDENCES, THE A.O. DISALLOWED 50% OF THE EXPENSES CLAIMED BY THE ASSESSEE. FURTHE R AFTER EXAMINING THE BALANCE SHEET FIGURES, THE A.O FOUND THAT AS T HE SOURCE FOR INVESTMENTS WERE NOT EXPLAINED, THEREFORE, THE A.O ADDED .2,03,35,311/- AS UNDISCLOSED INCOME OF THE ASSESSE E. AGGRIEVED AGAINST THE ORDER OF LD. A.O., THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE CIT(A). THE LEARNED CIT(A) ALLOWED THE APPEAL . 3. AGGRIEVED AGAINST THAT ORDER, THE REVENUE FILED THIS APPEAL BEFORE THE TRIBUNAL WITH THE FOLLOWING GROUNDS. 1. THE ORDER OF THE LEARNED CIT(A) IS WHOLLY ERRON EOUS ON FACTS OF THE CASE AND IN LAW. 2. THE LD.CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS.2,11,820/- MADE BY THE ASSESSING OFFICER BEING 50 % OF EXPENDI TURE CLAIMED BY THE ASSESSEE AGAINST PROFESSIONAL RECEIPTS FOR A YS 2011-12, IN THE ABSENCE OF ANY SUPPORTING EVIDENCE. ITA NO.2954/CHNY/2016 :- 3 -: 2.1 THE ID. CIT(A) ERRED IN HOLDING THAT THE ASSESS ING OFFICER HAD NOT GONE THROUGH ANY MATERIAL PERTAINING TO THE CLAIM O F EXPENDITURE AND HE HAD NOT MENTIONED ON WHAT BASIS HE HAS DISAL LOWED 50 % OF THE EXPENDITURE, 2.2 THE LD.CIT(A) ERRED IN NOT APPRECIATING THAT A SPECIFIC QUESTIONNAIRE DATED 17/01/2014 WAS ISSUED TO THE AS SESSEE CALLING FOR THE INFORMATION MENTIONED THEREIN AND THE DISAL LOWANCE WAS RESORTED TO BY THE ASSESSING OFFICER ONLY BECAUSE T HE ASSESSEE FAILED TO PRODUCE THE INFORMATION CALLED FOR, EVEN AFTER BEING ACCORDED REASONABLE OPPORTUNITY BY THE ASSESSING OF FICER. 3. THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS. 2,03,35,311/- MADE BY THE ASSESSING OFFICER TOWARDS UNDISCLOSED I NVESTMENTS IN THE ASSESSMENT FOR AY 2011-12. 3.1 THE ID. CIT(A) ERRED IN ALLOWING RELIEF TO THE ASSESSEE MERELY ON THE SUBMISSION OF THE ASSESSEE THAT IN THE HONBLE SETTLEMENT COMMISSIONS ORDER DATED 20.03.2015 IN THE CSSE OF ASSESSEES FATHER SRI.MAMMOOTTY, IT WAS CONFIRMED THAT ALL TH E INVESTMENTS MADE IN THE NAME OF THE ASSESSEE HAVE BEEN RECONCIL ED WITH THE BANK STATEMENTS OF HIS FATHER AND THAT OF THE ASSES SEE. 3.2 THE LD.CLT(A) ERRED IN NOT APPRECIATING THAT A SPECIFIC QUESTIONNAIRE DATED 17.01.2014 WAS ISSUED TO THE A SSESSEE CALING FOR THE INFORMATION MENTIONED THEREIN AND THE SAID ADDITION WAS MADE BY THE A.O. ONLY BECAUSE THE ASSESSEE FAILED T O PRODUCE THE REQUIRED INFORMATION CALLED FOR, EVEN AFTER BEING A CCORDED REASONABLE OPPORTUNITY BY THE ASSESSING OFFICER. 3.3 THE LD,CIT(A) HAVING CONSIDERED FOR ALLOWING RE LIEF TO THE ASSESSEE BASED ON FRESH SUBMISSION FROM THE ASSESSE E DURING THE APPELLATE PROCEEDINGS, OUGHT TO HAVE GIVEN AN OPPOR TUNITY TO THE A.O. ON THIS ISSUE OFFICER AS MANDATED UNDER RULE 46A OF IT RULES 1962, AS THE SAID EXPLANATION WAS NOT PUT FORTH DUR ING THE ASSESSMENT PROCEEDINGS BY THE ASSESSEE. ITA NO.2954/CHNY/2016 :- 4 -: 4. BEFORE US, THE LD. D.R. SUBMITTED THAT THE ASSE SSEE COULD NOT PRODUCE ANY EVIDENCE BEFORE THE A.O. AND HENCE, THE A.O. MADE THE ADDITIONS. BEFORE THE LEARNED CIT(A), THE ASSES SEE FILED CERTAIN FRESH DETAILS ON WHICH THE LEARNED CIT(A) HAS NOT G IVEN AN OPPORTUNITY TO THE A.O AS MANDATORY REQUIRED UNDER RULE 46A OF I.T.RULES, 1962. FURTHER, WITHOUT ANY SUPPORTING EVIDENCE, THE LEARN ED CIT(A) ALLOWED THE APPEAL. THEREFORE, THE LD. D.R PLEADED THAT THE ORDER OF THE LEARNED CIT(A) MAY BE SET ASIDE AND THAT OF THE A. O BE RESTORED. 5. PER CONTRA, THE LD. A.R. SUPPORTED THE ORDER OF THE LEARNED CIT(A). SINCE WE COULD NOT FIND ON WHAT BASIS THE L EARNED CIT(A) ALLOWED THE ASSESSEES APPEAL I.E. WITHOUT EXTRACTI NG THE RELEVANT PORTION OF THE ORDER OF SETTLEMENT COMMISSION DATED 20.03.2015, ETC., WE REQUIRED THE LD. A.R. TO SHOW THE BASIS. THEREAF TER, THE LD. A.R. SUBMITTED THE ORDER OF THE HONBLE SETTLEMENT COMMI SSION IN TAMIL NADU/CN 51/2013-14/22/IT DATED 28.11.2013 IN THE CA SE OF ASSESSEES FATHER, SHRI P.I.MOHAMMED KUTTY @ MAMMOOTTY AND PLE ADED THAT THE ISSUES WERE ALREADY COVERED. SINCE WE COULD NOT AS CERTAIN THE REQUIRED RECONCILIATION FROM THE ORDER OF THE HONB LE SETTLEMENT COMMISSION, THEN THE LD. A.R. INVITED OUR ATTENTION TO THE COPIES OF BANK STATEMENT RECONCILIATION MADE IN THE PAPER BOO K FILED BEFORE US ITA NO.2954/CHNY/2016 :- 5 -: AND MADE AN ATTEMPT TO EXPLAIN THE TRANSACTIONS ON WHICH THE LD. D.R. SUBMITTED THAT THE MATERIALS PLACED BEFORE THE ITAT WAS NOT AT ALL PLACED BEFORE THE ASSESSING OFFICER. THEREFORE, TH E A.O. HAS NOT EXAMINED THE NATURE AND SOURCE OF IMPUGNED TRANSACT IONS. IN THE ABSENCE OF SUCH DETAILS, THE A.O MADE THE ADDITION S BASED UPON INCREMENTAL DIFFERENCE BETWEEN THE BALANCE SHEET OF EARLIER YEAR AND THE CURRENT YEAR. SINCE THE LEARNED CIT(A) HAS NOT EXAMINED THESE ISSUES IN DETAIL, AND THE REQUIRED RECONCILIATION I S NOT AVAILABLE FROM THE ORDER OF THE HONBLE SETTLEMENT COMMISSION, HE PLEA DED THAT THE ISSUES MAY BE REMITTED BACK TO THE A.O FOR DUE EXAM INATION. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SINCE THE NATURE AND SOURCE OF THE IMPUGNED TRANSACTIONS WERE NOT PROPERLY PLACED AND EXPLAINED BEFORE THE A.O, WE DEEM IT FIT TO REMIT THE ISSUES BACK T O THE FILE OF A.O FOR A FRESH EXAMINATION. THE ASSESSEE SHALL PLACE RELEV ANT MATERIALS IN SUPPORT OF HIS CONTENTIONS BEFORE THE A.O. AND COMP LY WITH THE REQUIREMENTS OF THE A.O. IN ACCORDANCE WITH LAW. TH E A.O. IS ALSO FREE TO CONDUCT APPROPRIATE ENQUIRY AS DEEMED FIT. ON DU E EXAMINATION AND AFTER AFFORDING EFFECTIVE OPPORTUNITY TO THE ASSESS EE, THE A.O. SHALL DECIDE THE MATTER ON MERITS ITA NO.2954/CHNY/2016 :- 6 -: 7. IN THE RESULT, THE APPEAL OF REVENUE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH MAY, 2020 AT CHENNAI. SD/- SD/- ( . ) (DUVVURU RL REDDY) ( &) /JUDICIAL MEMBER ( ! ) (S. JAYARAMAN) /ACCOUNTANT MEMBER & / CHENNAI ' / DATED: 29 TH MAY,2020. K S SUNDARAM ( ) *+ , +$ / COPY TO: 1 . / APPELLANT 4. ( ( - / CIT 2. / RESPONDENT 5. +./ 01 / DR 3. ( ( - () / CIT(A) 6. /45 6 / GF