ITO, Coimbatore V. Rajendran Ravi Uma, Coimbatore

ITA 3215/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8156 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 09-01-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 23-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R. DURAI PANDIAN
• Assessee Lawyers: K. VIGNESH
• Keywords: Reasonable cause; Assessment record; Set aside
• 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; 143(3); 92; 142(1); 250; 143(2); 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , # $ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO. 3215/MDS/2016 / ASSESSMENT YEAR : 2013-14 INCOME TAX OFFICER, NON CORPORATE WARD, 4(3), COIMBATORE - 641 018. VS. SMT. RAJENDRAN RAVI UMA, NO. 6A, UMAR NAGAR, PODANUR MAIN ROAD, COIMBATORE - 641 023. [PAN: AARPU 5270H] ( / APPELLANT) ( / RESPONDENT) & ' / APPELLANT BY : SHRI R. DURAI PANDIAN, JCIT *+& ' / RESPONDENT BY : SHRI K. VIGNESH, CA ' /DATE OF HEARING : 09.01.2017 ' /DATE OF PRONOUNCEMENT : 11.01.2017 /O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER: THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 3, COIMBATOR E, DATED 09.09.2016 PASSED U/S. 143 AND 250 OF THE INCOME TAX ACT. :-2-: I.T.A. NO. 3215/MDS/2016 2. BEFORE WE PROCEEDED FOR HEARING THERE IS A DELAY OF 3 DAYS IN FILING THE APPEAL BY THE REVENUE. THE LD. DR FILED CONDONA TION PETITION AND EXPLAINED THE CIRCUMSTANCES FOR DELAY WHICH ARE NOT DELIBERATE. FURTHER, LD. AR OF THE ASSESSEE HAS NO SERIOUS OBJECTIONS FOR CO NDONATION OF DELAY. AFTER HEARING THE SUBMISSIONS, WE ARE SATISFIED WITH THE REASONABLE CAUSE EXPLAINED IN AFFIDAVIT FOR FILING THE APPEAL BELATE DLY. THEREFORE, THE DELAY IS CONDONED AND APPEAL IS ADMITTED. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 3.1 THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, HAS FAILED TO UNDERSTAND THE FACT THAT THE GENUINENESS OF THE PA RTITION DEED ITSELF IS NOT A SOURCE FOR GIVING AN AMOUNT OF RS. 1 CROR E TO ASSESSEE DURING THE FINANCIAL YEAR 2012-13 TOWARDS SETTLEME NT BY THE FAMILY MEMBERS 3.2 THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, HAS FAILED TO NOTE THE FACT THAT THE ASSESSEE HAS NOT PRODUCED THE CO NFIRMATIONS FROM THE FAMILY MEMBERS WHO MADE SETTLEMENTS AMONG THEM . 3.3 THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, HAS FAILED TO NOTE THE FACT THAT THE ASSESSEE HAS NOT PRODUCED THE DE TAILS OF THE INCOME TAX ASSESSMENT OF THE HUF AND ALSO SHE HAS NOT BEEN ABLE :-3-: I.T.A. NO. 3215/MDS/2016 TO EXPLAIN THE AMOUNT OF RS. 1 CRORE GIVEN TO HER ON PARTITION BY HER FATHER AND BROTHER DURING THE FINANCIAL YEAR 2012- 13 EVEN THOUGH SHE IS ONE OF THE FAMILY MEMBERS. 4. THE BRIEF FACTS OF THE CASE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN RUNNING SCHOOL AND HAVING INCOME FROM TU ITION FEES AND FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013-14 E LECTRONICALLY ON 26.07.2013 DECLARING TOTAL INCOME OF RS. 4,94,880/- . SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) AN D 142(1) OF THE ACT WAS ISSUED. IN COMPLIANCE TO THE NOTICE, LD. AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE BANK STATEMENT, COPY OF PARTITION DEED, COPY OF INCOME TAX RETURN AND STATEMENT OF INFLOW AND OUTFL OW OF CASH. THE LD. AO FROM THE ASSESSMENT RECORDS FOUND THAT THE ASSESSEE HAS CREDITED A SUM OF RS. 1 CRORE IN HER CASH FLOW STATEMENT AS ON 31.03. 2013 AND EXPLAINED THAT THE SUM IS RECEIVED BY CHEQUE FROM HER FATHER AND B ROTHER ON SETTLEMENT OF PROPERTY AMONG THE FAMILY MEMBERS AS PER THE CONDIT IONS OF THE PARTITION DEED. THE LD. AO ALSO VERIFIED THE REVISED CASH FL OW STATEMENT, BALANCE SHEET FILED BY THE ASSESSEE. THE LD. AO CALLED THE DETAILS OF INCOME TAX ASSESSMENT OF HUF AND CONFIRMATION FROM THE ASSESSE E FATHER AND BROTHER EVEN THOUGH THE AMOUNT PAID BY CHEQUE. AS THE ASSE SSEE HAS NOT PRODUCED ANY CONFIRMATION IRRESPECTIVE OF SUFFICIENT TIME AV AILABLE AND INCOME TAX ASSET DETAILS OF HUF, THE LD. AO TREATED THE SUM OF RS. 1 CRORE AS UNEXPLAINED :-4-: I.T.A. NO. 3215/MDS/2016 CREDIT U/S. 68 OF THE ACT AND MADE ADDITION TO THE RETURNED INCOME AND PASSED ORDER U/S. 143(3) DATED 31.03.2016 AND ASSES SED THE TOTAL INCOME OF RS. 1,04,94,880/-. AGGRIEVED BY THE ORDER, ASSESSE E FILED AN APPEAL WITH THE CIT(A). IN THE APPELLATE PROCEEDINGS, THE LD. AR A RGUED THAT THE ASSESSING OFFICER IS NOT CORRECT IN MAKING ADDITION U/S. 68 O F THE ACT IN SPITE OF REGISTERED PARTITION DEED OF FAMILY ARRANGEMENT AND AMOUNT IS RECEIVED AS PER MEMORANDUM OF UNDERSTANDING BETWEEN FAMILY MEMBERS. WHEREAS, THE LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE LD. AR AND THE FINDINGS OF THE ASSESSING OFFICER IS OF THE OPINION THAT THE LD. AO HAS NOT DISPUTED THE PARTITION DEED BUT TRANSACTION OF CHEQUE AND REQUIR ED INCOME TAX ASSESSMENT DETAILS OF HUF. THE LD. CIT(A) IS OF THE OPINION T HAT THE GENUINENESS OF CHEQUE TRANSACTION BY THE ASSESSEE HAS BEEN PROVED BASED ON THE FAMILY PARTITION DEED AND THE ASSESSING OFFICER ASSUMED TH AT THE HUF IS NOT HAVING ADEQUATE FUNDS AND SAME SHALL BE DEALT INDEPENDENTL Y IN HUF ASSESSMENT AND THERE IS NO NECESSITY FOR ADDITION OF UNEXPLAIN ED CREDIT U/S. 68 OF THE ACT AS THE TRANSACTIONS ARE DULY SUPPORTED WITH THE PAR TITION DEED AND DELETED THE ADDITION AND ALLOWED THE APPEAL. 5. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL. BEFORE US, THE LD. DR ARGUED THAT TH E CIT(A) ERRED IN UNDERSTANDING THE FACTS THAT THE ASSESSEE HAS SHOWN RS. 1 CRORE CREDIT IN THE FINANCIAL YEAR2012-13 BY CHEQUE TRANSFERRED BY THE FAMILY MEMBERS AND THERE :-5-: I.T.A. NO. 3215/MDS/2016 IS NO CLARITY WHETHER THE INCOME TAX PARTICULARS OF HUF ARE VERIFIED BY THE CIT(A) AND WHETHER CONFIRMATION OF FATHER AND BROTH ER ARE FILED AND IN FAMILY PARTITION ASSESSEE BEING ONE OF THE BENEFICIARY AND PRAYED FOR SET ASIDE OF THE ORDER OF THE CIT(A). CONTRA, THE LD. AR RELIED ON THE ORDERS OF THE CIT(A) AND OPPOSED THE GROUNDS. 6. WE HEARD THE BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD. THE SOLE CRUX OF THE DISPUTED ISSUE THAT THE CIT(A) HAS DELETED AN ADDITION OF RS. 1 CRORE UNEXPLAINED CASH U/S. 68 OF THE ACT WIT HOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS OBTAINED THIS MONEY AS PER TH E PARTITION DEED FROM THE FATHER AND BROTHER WHO HAVE NOT CONFIRMED THE PAYME NT TO THE ASSESSEE. THE LD. AR'S CONTENTION THAT THE PARTITION DEED IS NOT DISPUTED BY THE AO. BUT IN THE ASSESSMENT PROCEEDINGS OR IN APPELLATE PROCE EDINGS THE ASSESSEE COULD NOT SUBMIT THE CONFIRMATIONS OF FATHER AND BROTHER IN RESPECT OF RS. 1 CRORE CHEQUES AND DETAILS OF INCOME TAX ASSESSMENT OF HUF , WHICH ARE NECESSARY TO SUBSTANTIATE TO CLAIM THE AMOUNT IS ACTUALLY RECEI VED IN FAMILY SETTLEMENT. WE ARE OF THE VIEW, THAT THE LD. CIT(A) HAS RELIED ON FAMILY PARTITION DEED BUT THERE IS ALSO NECESSITY TO OBTAIN THE CONFIRMATIONS AS ALLEGED BY THE LD. AO. FURTHER, THE LD. CIT(A) HAS NOT CALLED FOR COMMENTS OR REMAND REPORT FROM THE ASSESSING OFFICER BEFORE DISPOSAL OF THE APPEAL . :-6-: I.T.A. NO. 3215/MDS/2016 7. CONSIDERING THE APPARENT FACTS AND CIRCUMSTANCES AND MATERIAL ON RECORD, WE ARE OF THE OPINION THAT THE MATTER HAS T O BE EXAMINED BY THE ASSESSING OFFICER, AS HE WAS DEPRIVED OF OPPORTUNIT Y TO VERIFY THE FACTS/MATERIAL RELIED BY THE LD. CIT(A). IN THE IN TEREST OF JUSTICE, WE REMIT THE DISPUTED ISSUE FOR LIMITED PURPOSE TO THE FILE OF A SSESSING OFFICER TO RE- EXAMINE THE FACTS AND PASS THE ORDER ON MERITS AND IT IS NEVERTHELESS TO MENTION THAT THE ASSESSEE SHOULD BE PROVIDED WITH A DEQUATE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER. 8. IN THE RESULT, THE REVENUE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 11TH DAY OF JANU ARY, 2017 AT CHENNAI. SD/- ( ' ) (CHANDRA POOJARI) $ / ACCOUNTANT MEMBER SD/ - ( . ) (G. PAVAN KUMAR) ) $ /JUDICIAL MEMBER /CHENNAI, 1 /DATED: 11TH JANUARY, 2017 JPV ' *#34 54 /COPY TO: 1. APPELLANT 2. *+& /RESPONDENT 3. 6 ( )/CIT(A) 4. 6 /CIT 5. 4 *## /DR 6. 9 /GF