Pradip M.Shah, CHENNAI V. ITO, CHENNAI

ITA 3412/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7396 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1988-1989
• Appeal Filed On: 20-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: N K MOHNOT ITP
• Section: 6; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A (SMC) BENCH : CHENNAI . , [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT M EMBER ] ./I.T.A. NO.3412/MDS/2016 / ASSESSMENT YEAR : 1988-89 SHRI. PRADIP M.SHAH, NO.4, SYDENHAMS ROAD, CHENNAI 600 112. [ PAN AAKPS 5161Q ] VS. THE INCOME TAX OFFICER, BUSINESS WARD VII(2) CHENNAI. ( !' / APPELLANT) ( #$!' /RESPONDENT) / APPELLANT BY : SHRI. N.K. MOHNOT, ITP. /RESPONDENT BY : SHRI. R. CLEMENT RAMESH KUMAR, JCIT. /DATE OF HEARING : 02-03-2017 !' /DATE OF PRONOUNCEMENT : 29-03-2017 % / O R D E R IN THIS APPEAL FILED BY THE ASSESSEE, IT ASSAILS AN ORDER DATED 07.10.2016 OF LD. COMMISSIONER OF INCOME TAX (APPEA LS)-10, CHENNAI, WHO REJECTED THE CONTENTION OF THE ASSESSEE THAT TH E ORDER PASSED BY THE LD. ASSESSING OFFICER WAS BARRED BY LIMITATION OF TIME. 2. FACTS APROPOS ARE THAT ORIGINAL ASSESSMENT WAS COMP LETED U/S.143(3) OF THE INCOME TAX, ACT 1961 (IN SHORT THE ACT) ON 30.03.1990 WHEREIN AMONG OTHERS THERE WAS AN ADDITI ON OF C3,30,841/- U/S. 69A OF THE ACT. THERE WAS AN APPE AL FILED BY THE ITA NO. 3412/MDS/2016. :- 2 -: ASSESSEE BEFORE LD. COMMISSIONER OF INCOME TAX (APP EALS). THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BY ITS ORDER D ATED 30.09.1991 HAD DELETED THE ADDITION OF C3,30,841/-. DEPARTMENT HAD MOVED UPON THIS TRIBUNAL AND THIS TRIBUNAL HAD PASSED AN ORDER ON 13.12.2000 IN ITA NO.2619/MDS/1991 WHERE IT HELD AS UNDER:- 4. IN SO FAR AS THE SECOND ISSUE IN CONCERNED, THE CLAIM OF THE ASSESSEE WAS THAT OUT OF 3,30,841/-, 3,25,000/- REPRESENTED THE CASH OF FOUR FIRMS A.R.BROTHER, A.R. BROTHERS AND ASSOCIATES, A.R. CCOMBINES AND A.R. TIMBERS. THE ASSESSEE CLAIMED THAT THE CASH BELONGED TO THE FOUR FIRMS AND IT HAS BEEN THE PRACTICE OF THE ASSESSEE TO RETAIN THE CASH CONSIDERING THE SAFETY OF THE CASH . IN SUPPORT OF THE CLAIM, THE ASSESSEE FILED A COPY OF THE REPRESENTATION THAT HAS BEEN MADE U/S.132(11) OF THE ACT PLEADING THE RETURN OF 3,25,000/-. THE ASSESSEE ALSO FILED A STATEMENT THAT WAS MADE U/S.132(4) OF THE ACT IN WHICH THE CATEGORICAL SUBMISSION WAS THAT THE CASH BELONGED TO THE FOUR FIRMS. IN THE CASE OF ONE OF THE RELATIVES OF THE ASSESSEE THE ISSUE CAME UP FOR CONSIDERATION BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 1989-90 AND VIDE THE TRIBUNAL DATED 21.04.1998 THE MATTER WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER. WE RESTORE THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR THE SOLE REASON THAT THE CASH BELONGED TO THE FOUR FIRMS WAS CORRECT OR OTHERWISE BY REFERRING TO THE CASH BOOKS OF THE FOUR FIRMS. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE AVAILABILITY OF CASH OF THE FOUR FIRMS WITH REFERENCE TO THEIR BOOKS OF ACCOUNT. HE SHALL AFFORD AN OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE AFRESH. LD. ASSESSING OFFICER THEREAFTER TOOK UPON THE MATT ER ONCE AGAIN FOR GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. IT SEE MS ASSESSEE DESPITE OPPORTUNITY GIVEN DID NOT PRODUCE BOOKS OF ACCOUNTS OF FOUR FIRMS FROM ITA NO. 3412/MDS/2016. :- 3 -: WHICH IT HAD CLAIMED TO HAVE RECEIVED MONEY. GIVIN G EFFECT ORDER WAS FINALLY PASSED ON 05.06.2006. 3. AGGRIEVED, ASSESSEE MOVED IN APPEAL BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS). ONE OF THE GR OUNDS TAKEN BY THE ASSESSEE ASSAILED THE ORDER PASSED BY THE LD. A SSESSING OFFICER STATING THAT IT WAS OUT OF TIME. AS PER ASSESSEE U /S.153(2A) OF THE ACT THE LD. ASSESSING OFFICER WAS OBLIGED TO COMPLETE F RESH PROCEEDINGS WITHIN THE FINANCIAL YEAR IN WHICH APPEAL ORDER WAS RECEIVED BY THE LD. CIT. AS PER ASSESSEE GIVING EFFECT ORDER PASSED ON 05.06.2006 WAS OUT OF TIME AND INVALID. LD. COMMISSIONER OF INCOM E TAX (APPEALS) DID NOT ACCEPT THIS CONTENTION. ACCORDING TO HIM, ASSESSEE DID NOT APPEAR BEFORE HIM AND DID NOT SUPPORT ITS CONTENTIO N WITH NECESSARY EVIDENCE. HE CONFIRMED THE ORDER OF THE LD. ASSESS ING OFFICER. 4. NOW BEFORE ME, LD. AUTHORISED REPRESENTATIVE RELYIN G ON SEC. 153(2A) OF THE ACT, SUBMITTED THAT THE ORDER D ATED 13.12.2000 OF THIS TRIBUNAL WAS GIVEN EFFECT ONLY ON 05.06.2006 A ND THIS WAS MUCH BEYOND TIME LIMIT PRESCRIBED U/S.153(2A) OF THE ACT . 5. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRONG LY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. BEFORE ADVERTING T O THE MERITS OF THE ITA NO. 3412/MDS/2016. :- 4 -: CLAIM OF THE ASSESSEE IT WOULD BE APPROPRIATE TO H AVE A LOOK AT SEC. 153(2A) OF THE ACT. NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTIONS (1) AND(2), IN RELATION TO THE ASSESSMENT YEAR COMMENCI NG ON THE 1ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSE SSMENT YEAR, AN ORDER OF FRESH ASSESSMENT UNDER SECTION 14 6 OR IN PURSUANCE OF AN ORDER, UNDER SECTION 250, SECTION 2 54, SECTION 263 OR SECTION 264, SETTING ASIDE OR CANCEL LING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPI RY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHI CH THE ORDER UNDER SECTION 146 CANCELLING THE ASSESSMENT I S PASSED BY THE ASSESSING OFFICER OR THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER O R COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDE R SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER. THE TIME LIMIT SPECIFIED IS ONE YEAR FROM THE END O F THE FINANCIAL YEAR IN WHICH THE ORDER WAS RECEIVED BY THE CHIEF COMMIS SIONER OR COMMISSIONER. IT IS TRUE THAT WE HAVE NO DIRECT RE CORD TO SHOW WHEN THE ORDER DATED 13.12.2000 OF THIS TRIBUNAL WAS REC EIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER. HOWEVER, ONE PARAGRAP H WHICH APPEAR IN GIVING EFFECT ORDER DATED 05.06.2006 IS V ERY RELEVANT AND THIS IS REPRODUCED HEREUNDER:- ON VERIFYING THE RECORDS, IT IS FOUND THAT THE RE CORDS PERTAINING TO THIS CASE ARE NOT AVAILABLE. AS PER THE LETTER DATED 12.10.2001 OF THE ITO V(3), CHENNAI -6 WHO WAS HAVING THE JURISDICTION OVER THIS CASE IS SEEMS THAT MY PREDECESSOR HAD NOT RECEIVED THE RECORDS ON CHAN GE OF JURISDICTION. AS THE RECORDS WERE NOT AVAILABLE IN THIS WARD EVEN EARLIER THE EFFECT TO THE APPELLANT ORDER COULD NOT HAVE BEEN PASSED. GIVING EFFECT TO THE HONBLE ITAT S ORDER IS NOW BEING GIVEN ON THE BASIS OF THE CO PIES OF THE ORDERS PRODUCED BY THE ASSESSEE THROUGH HIS REPRESENTATIVE. ITA NO. 3412/MDS/2016. :- 5 -: IT IS CLEAR THAT AS PER THE LETTER DATED 12.10.20 01, OF THE EARLIER ASSESSING OFFICER WHO WAS HAVING JURISDICTION OVER ASSESSEES CASE, THAT TRIBUNAL ORDER WAS NOT GIVEN EFFECT DUE TO NON AVAILABILITY OF RECORDS ON CHANGE OF JURISDICTION. IN MY OPINION PR EPONDERANCE OF PROBABILITY IS THAT COMMISSIONER OR CHIEF COMMISSI ONER WOULD HAVE RECEIVED THE ORDER OF THE TRIBUNAL MUCH EARLIER. E VEN IF WE PRESUME THAT CIT/CCIT HAD RECEIVED THE ORDER ONLY ON 12. 10.2001 THE GIVING EFFECT ORDER DATED 05.06.2006 WAS WELL BEYOND TIME LIMIT LAID DOWN U/S.153(2A) OF THE ACT. IN THESE CIRCUMSTANCES, I AM CONSTRAINED TO SET ASIDE THE ORDER OF THE LD. ASSESSING OFFICER, H AVING BEING PASSED BEYOND TIME LIMIT U/S.153(2A) OF THE ACT. SUCH ORD ER STANDS SET ASIDE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS AL LOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 29TH DAY O F MARCH, 2017, AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 29TH MARCH, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,- / CIT(A) 5. )./ 0 / DR 2. / RESPONDENT 4. + / CIT 6. /12 / GF