Shri G.K. Sampath, CHENNAI V. ACIT, CHENNAI

ITA 3170/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8185 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 03-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 17-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B. SAHADEVAN
• Assessee Lawyers: G. SEETHARAMAN
• Keywords: Reopening of assessment
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.3170/MDS/2016 / ASSESSMENT YEAR : 2007-08 SHRI G.K. SAMPATH, NO.107, PANEER NAGAR, 3-2/1, MOGAPPAIR, CHENNAI 600 037. [PAN: ABEPS 2852 F] V. THE ASST. COMMISSIONER OF INCOME TAX, NON-CORPORATE WARD-7 (1), CHENNAI 600 034. ( /APPELLANT) ( !' /RESPONDENT) # / APPELLANT BY : SHRI G. SEETHARAMAN, CA !' # /RESPONDENT BY : SHRI B. SAHADEVAN, JCIT # /DATE OF HEARING : 03.01.2017 # /DATE OF PRONOUNCEMENT : 13.01.2017 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 31.08.2016 OF COMMISSIONER OF INCOME TAX (APPEALS)- 7, CHENNAI, IN ITA NO.23/CIT(A)-7/2015-16 FOR THE AY 2007-08. I.T.A. NO.3170/MDS/2016 :- 2 -: 2.0 THE ASSESSEE FILED THE RETURN OF INCOME DECLARING T OTAL INCOME OF 7,04,523/- ON 02.11.2007. THE ASSESSMENT WAS COMPL ETED UNDER SECTION 143 (3) OF THE INCOME TAX ACT, 1961 (IN SHO RT THE ACT) ON 30.12.2009 DETERMINING THE TOTAL INCOME OF 24,03,170/-. SUBSEQUENTLY, THE CASE WAS REOPENED BY ISSUE OF NOTICE SECTION 14 7 OF THE ACT AND COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) READ WITH SECTION 147 BY AN ORDER DATED 19.03.2015 ON TOTAL INCOME OF 36,03,170/-. ASSESSING OFFICER MADE ADDITION OF 12,00,000/- RELATING TO THE COST OF CONSTRUCTION CLAIMED BY THE ASSESSEE. THE ASSESSEE RECEIVED THE CONSTRUCTION COST FROM SHRI BHAVANI MAHESHKUMAR 35 LAKHS AND 32 LAKHS FROM SHRI P. BABUJEE RESPECTIVELY AND DEDUCTED A SUM OF 6 LAKHS EACH FROM BOTH THE PARTIES TOWARDS LAND COST FROM THE CONSTRUCTION REC EIPTS AND ADMITTED THE RESULTANT AMOUNT IN THE RETURN OF INCOME. THE ASSE SSING OFFICER HAS OMITTED TO CONSIDER THE AMOUNT OF 12 LAKHS WHILE COMPLETING THE ORIGINAL ASSESSMENT. THEREFORE, THE ASSESSMENT WAS REOPENED U/S.147 AND MADE THE ADDITION OF 12 LAKHS IN THE REASSESSMENT ON 19.03.2015. AGGR IEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT (APPEALS) AND THE CIT (APPEALS) CONFIRMED T HE ORDER OF THE ASSESSING OFFICER. 3.0 SHRI G. SEETHARAMAN APPEARED FOR THE ASSESSEE. THE ASSESSEE FILED AN ADDITIONAL GROUND OF APPEAL CHALLENGING THE VALI DITY OF THE REOPENING OF THE ASSESSMENT WITHOUT ANY FRESH MATERIAL BEING COL LECTED BY THE I.T.A. NO.3170/MDS/2016 :- 3 -: ASSESSING OFFICER. SINCE THE ISSUE GOES TO THE ROOT OF THE ASSESSMENT, REQUESTED FOR ADMISSION OF THE ADDITIONAL GROUND AN D ARGUED THAT REOPENING OF ASSESSMENT IS BAD IN LAW SINCE IT IS R EOPENED AFTER EXPIRY OF FOUR YEARS WITHOUT ANY ADDITIONAL MATERIAL BEFORE T HE ASSESSING OFFICER. THE LD.AR OF THE ASSESSEE ARGUED THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S.143(3) AFTER VERIFYING ALL THE DETAIL S AND NO FRESH MATERIAL HAS BEEN COLLECTED BY THE ASSESSING OFFICER AND THE RE IS NO FAILURE ON THE PART OF THE ASSESSEE HENCE THE REOPENING OF ASSESSM ENT WAS BAD IN LAW. ON THE OTHER HAND THE LD.D.R. ARGUED THAT THIS ISSU E HAS NEITHER RAISED BEFORE THE AO NOR BEFORE THE LD.CIT(A) AND REQUIRE VERIFICATION OF THE FACTS. LD.D.R CONTENDED THAT THE ISSUE SHOULD GO BA CK TO THE FILE OF THE A.O TO GIVE FINDING ON REOPENING ASSESSMENT. 4.0 WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL PLACED ON RECORD. THE LD.AR OF THE ASSESSEE HAS RAISED THE AD DITIONAL GROUND REGARDING THE REOPENING OF ASSESSMENT WHICH GOES TO THE ROOT OF THE ISSUE. THE ADDITIONAL GROUND RAISED BY THE LD.AR I S ADMITTED. ON GOING THROUGH THE ASSESSMENT ORDER AND THE GROUNDS OF APP EAL FILED BEFORE THE CIT(A) IT IS SEEN THAT THE ASSESSEE HAS NOT RAISED THIS ISSUE BEFORE LOWER AUTHORITIES AND THE LOWER AUTHORITIES HAVE NOT GONE IN TO THIS ISSUE. THEREFORE WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE SHOULD BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. ACCORDIN GLY, WE REMIT BACK THE I.T.A. NO.3170/MDS/2016 :- 4 -: MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-EXAMINE THE ISSUE AND DECIDE THE MATTER AFRESH ON MERITS. 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JANUARY, 2017 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . . ) (D.S.SUNDER SINGH) /ACCOUNTANT MEMBER /CHENNAI, /DATED: 13 TH JANUARY, 2017. TLN !' #$!% /COPY TO: 1. #'&'( /APPELLANT 4. ) /CIT 2. * '( /RESPONDENT 5. !+,& -. /DR 3. ) ( #'& ) /CIT(A) 6. 1 2 /GF