J SUNDAR, CHENNAI V. ACIT, CENTRAL CIR-3(2), CHENNAI

ITA 3457/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0720 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J PAVITHRAN KUMAR
• Assessee Lawyers: G BASKAR
• Keywords: Condonation of delay
• Section: 143(3); 153A; 234B; 32; 6; 132; 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI . . . , ! , & BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NOS.3456 TO 3462/CHNY/2018 ' ' /ASSESSMENT YEARS: 2009-10 TO 2015-16 SHRI J. SUNDER, NEW NO.21, OLD NO.7, THIRUNAVUKARASU STREET, PERAMBUR, CHENNAI-600 011. V . THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(2), NO. 46, MAHATMA GANDHI ROAD, NUNGAMBAKKAM CHENNAI-600034 [PAN: CTYPS 3358 G ] ( * /APPELLANT) ( +,* /RESPONDENT) * - / APPELLANT BY : MR. G.BASKAR, ADV. +,* - /RESPONDENT BY : MR. J.PAVITHRAN KUMAR, JCIT - /DATE OF HEARING : 19.12.2019 - /DATE OF PRONOUNCEMENT : 23.12.2019 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER : THESE SEVEN APPEALS FILED BY ASSESSEE ARE DIRECTED AGAINST COMMON APPELLATE ORDER DATED 25.09.2018 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-19, CHENNAI (HEREINAFTER CALLE D THE CIT(A)), IN ITA NOS.174 TO 180/CIT(A)-19/2016-17 FOR ASSESSMENT YEARS (AYS) 2009- 10 TO 2015-16 RESPECTIVELY, THE APPELLATE PROCEEDIN GS BEFORE LEARNED CIT(A) HAD ARISEN FROM SEPARATE ASSESSMENT ORDER(S) ALL DATED 22.12.2016 PASSED BY LEARNED ASSESSING OFFICER (HE REINAFTER CALLED THE AO) U/S.143(3) READ WITH SECTION 153A OF THE INCO ME-TAX ACT, 1961 ITA NOS.3456 TO 3462/CHNY/2018 :- 2 -: (HEREINAFTER CALLED THE ACT) FOR AY: 2009-10 TO 2 014-15 AND U/S 143(3) READ WITH SECTION 153B(1)(B) OF THE 1961 ACT FOR AY : 2015-16. SINCE COMMON ISSUES ARE INVOLVED, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE ADJUDICATED VIDE THIS COMMON ORDER PASSED BY TR IBUNAL. FIRST WE SHALL TAKE UP APPEAL OF THE ASSESSEE FOR AY: 2009-10 AND SINCE COMMON ISSUES ARE INVOLVED WHEREIN FACTS ARE SIMILAR, OUR DECISIO N FOR AY: 2009-10 SHALL APPLY MUTATIS MUTANDIS TO THE APPEALS FILED BY ASSE SSEE FOR AY: 2010-11 TO 2015-16. 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN MEM O OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, CHENNAI (HE REINAFTER CALLED THE TRIBUNAL) FOR AY: 2009-10 READ AS UNDER:- 1. THE ORDER OF THE CIT(A) IS ERRONEOUS AND OPPOS ED TO LAW AND FACTS TO THE EXTENT IT CONFIRMS THE ORDER OF ASSESSMENT. 2.1 THE C!T(A) ERRED IN CONFIRMING THE ADDITION OF THE RENT OF RS.79.100/- UNEXPLAINED INCOME FROM HOUSE PROPERTY. 2.2 THE CIT(A) FAILED TO CONSIDER THE SUBMISSIO NS MADE BEFORE HIM IN THE PROPER PERSPECTIVE. 3.1 THE CIT(A) ERRED IN CONFIRMING THE LEVY OF INTEREST U/S.234A IN SO FAR AS THE APPELLANT HAS DULY FURNISHED THE RETURNS OF INC OME ON TIME. 3.2 THE CIT(A) EQUALLY WENT WRONG IN NOT CONFIR MING THE LEVY OF INTEREST U/S.234B OF THE INCOME-TAX ACT SINCE THE APPELLANT COULD NOT HAVE ANTICIPATED THE ADDITIONS. 4. ANY OTHER GROUNDS THAT MAY BE TAKEN UP AT THE T IME OF HEARING. 3 THESE SEVEN APPEALS ARE FILED LATE BY 23 DAYS, TH E ASSESSEE HAS FILED PETITION FOR CONDONATION OF DELAY SUPPORTED BY AN A FFIDAVIT AND PRAYERS ARE MADE TO CONDONE DELAY IN FILING THESE APPEALS LATE BY 23 DAYS BEYOND THE TIME STIPULATED U/S 253(5) OF THE 1961 ACT . THE A SSESSEE HAS SHOWN HIS ITA NOS.3456 TO 3462/CHNY/2018 :- 3 -: ILLNESS FOR NOT FILING THE APPEAL IN TIME BEFORE T HE TRIBUNAL. THE LD.DR DID NOT OBJECT TO CONDONE THE DELAY IN FILING THEE APPE ALS LATE BY 23 DAYS, AFTER HEARING BOTH THE PARTIES AND PERUSING THE MAT ERIAL ON RECORD, WE CONDONE DELAY OF 23 DAYS IN FILING OF THIS APPEAL L ATE BY ASSESSEE BEYOND TIME STIPULATED FOR FILING APPEAL WITH TRIBUNAL U/S 253(5) OF THE 1961 ACT , IN THE INTEREST OF SUBSTANTIAL JUSTICE. WHENCE TECH NICALITIES ARE PITTED AGAINST SUBSTANTIAL JUSTICE, THE COURTS WILL LEAN T OWARDS SUBSTANTIAL JUSTICE UNLESS MALAFIDE IS WRIT LARGE ON THE PART OF LITIGA NT. BASED ON MATERIAL ON RECORD , WE DONOT FIND ANY MALAFIDE ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL LATE BY 23 DAYS BEYOND TIME STIPULATED U/S 253(5) OF THE 1961 ACT AND THUS, KEEPING IN VIEW INTEREST OF SUBSTANTI AL JUSTICE, WE CONDONE THIS DELAY OF 23 DAYS AND ADMIT APPEAL FILED BY ASS ESSEEA . 4. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESS EE DERIVES INCOME FROM BUSINESS OF MONEY LENDING, SUPPLY OF LABOUR, HOUSE PROPERTY AND OTHER SOURCES. THE ASSESSEE WAS SEARCHED BY REVENUE U/S.1 32 OF THE INCOME TAX ACT, 1961 ON 28.01.2015 AT THE RESIDENCE OF THE ASSESSEE AT NO.21/7, THIRUNAVUKARASU STREET, PERAMBUR, CHENNAI-600 011. THE AO ISSUED NOTICE DATED 29.12.2015 U/S.153A OF THE 1961 ACT T O THE ASSESSEE WHICH WAS DULY SERVED ON THE ASSESSEE ON 01.01.2016. THE ASSESSEE FILED RETURN OF INCOME U/S.153A OF THE ACT ON 15.04.2016. IT IS AN ADMITTED POSITION NOW THAT THE RETURN OF INCOME U/S.153A OF THE ACT PURSUANT TO SEARCH U/S.132 WAS FILED BEYOND THE TIME STIPULATED IN THE NOTICE ISSUED BY THE AO. EVEN FOR AY 2015-16, THE RETURN OF INCO ME WAS FILED BELATEDLY ITA NOS.3456 TO 3462/CHNY/2018 :- 4 -: PURSUANT TO NOTICE ISSUED U/S 153A OF THE 1961 ACT, WHILE NO RETURN OF INCOME WAS EARLIER FILED BY ASSESSEE FOR AY: 2015-1 6 U/S.139(1) OF THE ACT. THUS, IT IS AN ADMITTED POSITION THAT RETURN OF INCOME(S) WERE FILED BEYOND THE TIME STIPULATED IN THE NOTICE ISSUED BY THE AO U/S.153A OF THE ACT . 5. GROUND NO.1 RAISED BY ASSESSEE IS GENERAL IN NA TURE. WE HAVE OBSERVED THAT NO ARGUMENTS WERE ADVANCED BY LD.COUN SEL FOR THE ASSESSEE IN SUPPORT OF GROUND NO.1 AND THIS GROUND OF APPEAL IS GENERAL IN NATURE AND IN OUR CONSIDERED VIEW, DOES NOT REQUIRE SEPARATE ADJUDICATION AND IS HEREBY DISMISSED. WE ORDER ACCORDINGLY. 6. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE THE BENCH THAT ASSESSEE DOES NOT WISH TO PRESS GROUND NOS.2.1 & 2. 2 AND THE SAME CAN BE DISMISSED AS NOT BEEN PRESSED. THE LEARNED COUN SEL FOR THE ASSESSEE HAS MADE ENDORSEMENT IN THE APPEAL MEMO AS TO THE N OT PRESSING OF THE GROUND NUMBER 2.1 AND 2.2 .THE LD.DR DID NOT OBJECT TO THE DISMISSAL OF GROUND NOS.2.1 & 2.2 AS NOT BEEN PRESSED. AFTER HE ARING BOTH THE SIDES, WE DISMISS GROUND NOS.2.1 & 2.2. WE ORDER ACCORDING LY. 7.SO FAR AS GROUND NOS.3.1 & 3.2 ARE CONCERNED, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS SOME COMPUTATIONAL ERRORS IN THE INTEREST COMPUTED BY AO U/S.234A & 234B OF THE ACT, WHICH NE EDS TO BE RECTIFIED. HOWEVER, NO DETAILS OF THE GRIEVANCE AS TO COMPUTAT IONAL ERROR IN COMPUTING INTEREST BY THE AO ARE FILED BEFORE US TO SUPPORT THE CONTENTION. THE LD.DR SUBMITTED THAT AS THE ASSES SEE HAS FILED RETURN OF INCOME BEYOND THE TIME STIPULATED BY THE AO FOR FIL ING OF RETURN OF INCOME ITA NOS.3456 TO 3462/CHNY/2018 :- 5 -: U/S.153A OF THE ACT, THE AO HAS RIGHTLY COMPUTED IN TEREST AS PROVIDED U/S 234A OF THE 1961 ACT. THE NOTICE WAS ISSUED BY AO U /S.153A OF THE ACT ON 29.12.2015 WHICH WAS DULY SERVED ON ASSESSEE ON 01. 01.2016 ASKING ASSESSEE TO FILE RETURN OF INCOME U/S.153A OF THE ACT WITHIN 30 DAYS BUT THE ASSESSEE HAS FILED RETURN OF INCOME ON 15.04.20 16 WHICH IS BEYOND THE TIME PRESCRIBED IN THE NOTICE ISSUED BY THE AO U/S.153A OF THE ACT AND HENCE THE LEARNED DR CLAIMED THAT THE AO HAS RIGHTL Y LEVIED INTEREST U/S.234A . IT WAS ALSO SUBMITTED BY LEARNED DR THAT THERE WAS DETECTION INCOME PURSUANT TO SEARCH AND THE ASSESSEE FILED RE TURN OF INCOME PERUSANT TO SEARCH WHEREIN THESE INCOME DETECTED DU RING SEARCH WERE DECLARED AND THEREAFTER FURTHER THE AO HAS MADE A N ADDITIONS TO THE INCOME OF THE ASSESSEE WHILE FRAMING ASSESSMENT U/S 153A READ WITH SECTION 143(3) OF THE 1961 ACT. IT WAS SUBMITTED TH AT THESE INCOMES ALTHOUGH DETECTED IN SEARCH CONDUCTED U/S 132 ON 28 .01.2015 BUT THESE INCOME RELATES TO PREVIOUS YEAR RELEVANT TO AY: 200 9-10 AND HENCE INTEREST U/S 234B WAS RIGHTLY LEVIED. 7.2 IN OUR CONSIDERED VIEW , PROVISIONS OF SEC. 234 A & 234B ARE CONSEQUENTIAL IN NATURE AND MANDATORY. REFERENCE IS DRAWN TO DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. ANJUM M .H.GHASWALA REPORTED IN [2001] 119 TAXMAN 352 (SC) . THE ASSESS EE HAS ADMITTEDLY FILED ITS RETURN OF INCOME BEYOND TIME STIPULATED I N NOTICE ISSUED U/S 153A. IN THE RETURN OF INCOME FILED BY ASSESSEE IN PURSUA NT TO NOTICE ISSUED U/S 153A , THE ASSESSEE HAS DECLARED INCOME WHICH WAS D ETECTED DURING SEARCH OPERATIONS . THE AO HAS FURTHER ENHANCED THE INCOME WHILE ITA NOS.3456 TO 3462/CHNY/2018 :- 6 -: FRAMING ASSESSMENT U/S 153A READ WITH SECTION 143(3 ) OF THE 1961 ACT. REFERENCE IS ALSO DRAWN TO DECISION OF HONBLE MADR AS HIGH COURT IN THE CASE OF A. KUBERAN V. CCIT, CHENNAI REPORTED IN [2 018] 89 TAXMANN.COM 179 (MADRAS) , WHEREIN HONBLE MADRAS HIGH COURT HA S HELD THAT WHERE ASSESSEE HAS MADE DISCLOSURE ONLY AFTER DETECTING T O SEARCH THERE IS NO VOLUNTARY DISCLOSURE AND HENCE ASSESSEE COULD NOT C LAIM BENEFIT OF WAIVER OF INTEREST U/S.234A , 234B AND 234C BY INVOKING C IRCULAR NO.400/29/2002-IT(B) DATED 26.06.2006. WE HAVE OBSE RVED THAT ADMITTEDLY ASSESSEE HAS FILED RETURN OF INCOME BEYO ND THE TIME STIPULATED IN THE NOTICE DATED 29.12.2015 ISUSED BY AO U/S.153 A OF THE ACT ASKING ASSESSEE TO FILE RETURN OF INCOME U/S.153A OF THE A CT WITHIN 30 DAYS. THE ASSESSEE FILED RETURN OF INCOME ON 15.04.2016. THE LEVY OF INTEREST U/S.234A & 234B IS MANDATORY AND IS CONSEQUENTIAL I N NATURE. WE HAVE ALSO OBSERVED THAT THE ASSESSEE HAS MADE DISCLOSURE IN THE RETURN OF INCOME FILED U/S.153A OF THE ACT WHICH WERE NOT DIS CLOSED IN THE ORIGINAL RETURN OF INCOME FILED U/S.139(1) OF THE ACT AND AL SO THERE HAS BEEN FURTHER ADDITIONS MADE BY AO WHILE FRAMING ASSESSME NT U/S.153A R.W.S. 143(3) OF THE ACT. THESE INCOMES BELONG TO PREVIOU S YEAR RELEVANT TO IMPUGNED AY: 2009-10 WHICH ARE NOW DISCLOSED BY ASS ESSEE IN RETURN OF INCOME FILED WITH REVENUE PURSUANT TO SEARCH AND FU RTHER ADDITIONS ARE ALSO MADE BY AO WHILE FRAMING ASSESSMENT U/S 153A R .W.S. 143(3) OF THE 1961 ACT. WE HOLD LEVY OF INTEREST U/S 234A, 234B A ND 234C IS MANDATORY AND CONSEQUENTIAL IN NATURE. THE AO I DIRECTED TO L OOK INTO THE GRIEVANCE OF THE ASSESSEE AS TO ERROR IN COMPUTATION OF INTER EST U/S 234A AND 234B ITA NOS.3456 TO 3462/CHNY/2018 :- 7 -: AND PASS ORDERS IN ACCORDANCE WITH LAW. THE ASSESSE E IS DIRECTED TO APPEAR BEFORE THE AO AND PRESENT ITS CLAIM OF ERROR IN THE COMPUTATION OF INTERE. CONSEQUENTLY, WE ALLOW FOR STATISTICAL PU RPOSES GROUND NOS.3.1 & 3.2 RAISED BY ASSESSEE IN ITS APPEAL FILED WITH TRI BUNAL FOR LIMITED VERIFICATION BY THE AO AS TO COMPUTATION ASPECT RAI SED BY ASSESSEE. 8. GROUND NO.4 IS AGAIN GENERAL IN NATURE, AND IN OUR CONSIDERED VIEW, DOES NOT REQUIRE ASEPERATE ADJUDICATION. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.3456/CHNY/2018 FOR AY: 2009-10 STANDS PARTLY AL LOWED FOR STATISTICAL PURPOSES OUR DECISION IN ITA NO. 3456/CHNY/2018 FO R AY: 2009-10 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS.3457 TO 3462/CHNY /2018 FOR AY: 2010- 11 TO 2015-16. ALL THE APPEALS STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. WE ORDER ACCORDINGLY. ORDER PRONOUNCED ON THE 23 RD DAY OF DECEMBER, 2019 IN CHENNAI. SD/- SD/- ( . . . ) ( N.R.S. GANESAN ) /JUDICIAL MEMBER ( ! ) ( RAMIT KOCHAR ) /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED: 23 RD DECEMBER, 2019. TLN - +!2 32 /COPY TO: 1. * /APPELLANT 4. 4 /CIT 2. +,* /RESPONDENT 5. 2 + /DR 3. 4 ( ) /CIT(A) 6. ' /GF