B Arunkumar, Coimbatore V. DCIT, Circle-1, Trichy

ITA 369/CHNY/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2722 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 31-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALENDRA MAMIDI CIT D R
• Assessee Lawyers: S SRIDHAR ERODE
• Keywords: Opportunity of being heard; Source of fund; Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI S.JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A.NO.369/CHNY/2018 / ASSESSMENT YEAR : 2014-15 SIVA B. ARUN KUMAR , NO.3,CO-OPERATIVE COLONY, E.B.OFFICE ROAD, METTUPALAYAM 641 301. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, CHRISTO BUILDING, 2 ND FLOOR, STATE BANK ROAD,OOTY 643 001. [PAN ADDPA 2289 B ] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.691/CHNY/2018 / ASSESSMENT YEAR : 2014-15 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, CHRISTO BUILDING, 2 ND FLOOR, STATE BANK ROAD,OOTY 643 001. VS. SIVA B. ARUN KUMAR , NO.3,CO-OPERATIVE COLONY, E.B.OFFICE ROAD, METTUPALAYAM 641 301 [PAN ADDPA 2289 B] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE,ERODE !' /RESPONDENT BY : MR.SALENDRA MAMIDI, CIT, D.R # $ %& / DATE OF HEARING : 25 - 1 0 - 201 8 '( %& / DATE OF PRONOUNCEMENT : 25 - 1 0 - 201 8 ! / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THE CROSS APPEALS FILED BY THE ASSESSEE AND BY THE REVENUE ARE DIRECTED AGAINST AN ORDER OF THE CIT(APPEALS)-3, COIMBATORE IN APPEAL NO.379/16-17 FOR THE ASSESSMENT YEAR 2014-15. ITA NO.369 & 691/CHNY/18 :- 2 -: 2. SHRI S.SRIDHAR REPRESENTED ON BEHALF OF THE ASS ESSEE AND SHRI SALENDRA MAMIDI REPRESENTED ON BEHALF THE OF THE REVENUE. 3. A PPEA L OF THE REVENUE IS DELAYED BY 6 DAYS FOR WHICH A CONDONATION PETITION HAS BEEN FILED. THE LEARNED A O HAS SUBMITTED A PETITION DATED 22.02.2018 SEEKING CONDONATION OF DE LAY AND THE AO STATED IN THIS PETITION THAT THE DELAY OF 6 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL IS ON ACCOUNT OF TRANSITING OF FILE FROM OOTY TO COIMBATORE AND COIMBATORE TO OOTY. IN OUR OPINION, THE REASONS EXPLAINED BY THE AO FOR FILING THE APPEAL BELATEDLY IS BONAFIDE. ACCORDINGLY, THE DELAY IS CONDONED. 3. IT WAS SUBMITTED BY LD.D.R THAT TWO ISSUES HAD BEEN RAISED IN THE REVENUES APPEAL. THE FIRST ONE BEING AGAIN ST THE ACTION OF THE LD.CIT(A) IN DELETING THE 50% OF THE ADDITION MADE BY THE LD. ASSESSING OFFICER IN RESPECT OF THE DEVELOPMENT EXP ENDITURE CLAIMED BY THE ASSESSEE. IT WAS A FURTHER SUBMISSION THAT I N RESPECT OF 50% OF THE ADDITION AS BEEN CONFIRMED BY THE LD.CIT(A), TH E ASSESSEE IS IN APPEAL IN ITA NO.369/CHNY/2018. IT WAS A SUBMISSION THAT THE SECOND ISSUE BEING AGAINST THE ACTION OF THE LD.CIT(A) IN ADMITTING THE ADDITIONAL EVIDENCE IN FORM OF AN AFFIDAVIT GIVEN B Y ONE OF THE DIRECTORS OF M/S.AGNUS HOLDINGS (P) LTD ON BEHALF OF M/S.TENS HI ASSISTED LIVING (P) LTD., IN RESPECT OF SOURCE OF FUNDS DISALLOWED BY THE LD. ASSESSING OFFICER IN RESPECT OF THE PURCHASE OF AGRICULTURAL LAND. IT WAS A ITA NO.369 & 691/CHNY/18 :- 3 -: SUBMISSION THAT LD.CIT(A) HAS ADJUDICATED BOTH THE ISSUES WITHOUT GRANTING THE LD. ASSESSING OFFICER ADEQUATE OPPORT UNITY TO REBUT THE EVIDENCES PRODUCED BEFORE THE LD.CIT(A). IT WAS A SUBMISSION THAT IN THE ASSESSMENT ORDER, THE LD. ASSESSING OFFICER HAS CATEGORICALLY STATED THAT NO EVIDENCE HAS BEEN PRODUCED TO SUBSTANTIATE THE CLAIM OF EXPENSES AND IMPROVEMENT TO LAND AND DEVELOPMENT E XPENDITURES AS ALSO IN RESPECT OF THE SOURCES FOR THE INVESTMENT I N THE LAND BEING AGRICULTURAL LAND. IT WAS A SUBMISSION THAT HE HAD NO OBJECTION, IF THE ISSUES ARE RESTORED TO THE FILE OF LD. ASSESSING OF FICER FOR RE- ADJUDICATION. 4. IN REPLY, LD.A.R VEHEMENTLY OPPOSED THE SUBMISS IONS OF LD.D.R FOR RESTORING THE TWO ISSUES TO THE FILE OF LD. ASSESSING OFFICER. IT WAS SUBMITTED BY LD.A.R THAT ASSESSMENT ORDER HAS B EEN PASSED WITHOUT CONSIDERING ANY OF THE EVIDENCES PRODUCED. IT WAS A SUBMISSION THAT IN THE COURSE OF ASSESSMENT, THE IS SUE OF THE CARRY FORWARD AND SET OFF OF THE BUSINESS LOSS OF THE ASS ESSEE AGAINST THE LONG TERM CAPITAL GAINS WAS ALSO NOT GRANTED. IT WA S A SUBMISSION THAT THE SAID CARRY FORWARD AND SET OFF WAS PERMITTED B Y THE LD.CIT(A) AND NO FURTHER APPEAL HAS BEEN FILED BY THE REVENUE AGA INST THE SAID ALLOWANCES. IT WAS A FURTHER SUBMISSION THAT THE L D. ASSESSING OFFICER HAD DISBELIEVED THE SOURCE FOR THE PURCHASE OF THE AGRICULTURAL LAND TO AN EXTENT OF ` 15.20 CRORES RECEIVED BY THE ASSESSEE FROM M/S.AGNU S ITA NO.369 & 691/CHNY/18 :- 4 -: HOLDINGS (P) LTD., ON BEHALF OF M/S.TENSHI ASSISTED LIVING (P) LTD. IT WAS A SUBMISSION THAT IN THE ASSESSMENT ORDER, THE AO MENTIONED THAT THE DETAILS WERE NOT PRODUCED BEFORE THE LD. ASSESS ING OFFICER. IT WAS A SUBMISSION THAT FORM 26AS CLEARLY SHOWED THE DETAIL S OF M/S.TENSHI ASSISTED LIVING (P) LTD., TAX DEDUCTION AND THE PAN , BUT THE LD. ASSESSING OFFICER WAS UNWILLING TO AND EVEN TODAY U NWILLING TO GRANT ASSESSEE THE BENEFIT OF THE CREDIT OF THE TDS. IT WAS A SUBMISSION THAT THE ORDER OF THE CIT(APPEALS) WAS LIABLE TO BE UPHELD TO THE EXTENT OF RELIEF GRANTED AND IN RESPECT OF 50% DISA LLOWANCE CONFIRMED BY THE LD.CIT(A), THE SAME WAS LIABLE TO BE DELETED . 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE ASSESSMENT ORDER IN THE PRESENT CASE CLEARLY SHOWS THAT THE RETURN HAD BEEN FILED ON 31.10.2015, NOTICE U/S.142(1) CAME TO BE ISSUED ON 26.10.2016, 16.11.2016 AND 16.12.2016, THE ASSESSME NT ORDER HAD BEEN PASSED ON 24.12.2016, I.E. LESS THAN 10 DAYS O F THE LAST NOTICE U/S.142(1) OF THE ACT WAS ISSUED. THE ASSESSEE SEE MS TO HAVE RESPONDED TO MOST OF THE NOTICES ISSUED U/S.142(1) OF THE ACT. HOWEVER, THE REPLY OF THE ASSESSEE HAS NOT BEEN FOU ND ACCEPTABLE. THIS BEING SO, IN THE INTEREST OF JUSTICE, THE ISSU ES IN THE CROSS APPEALS OF THE ASSESSEE AS WELL AS THE REVENUE ARE RESTORED TO THE FILE OF THE LD. ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRA NTING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. THOUGH IT IS N OTICED THAT IN THE ITA NO.369 & 691/CHNY/18 :- 5 -: ASSESSMENT ORDER, VARIOUS OTHER ISSUES HAVE ALSO BE EN RAISED SUCH AS THE ALLOWANCE OF SET OFF OF THE BUSINESS LOSS AGAIN ST THE INCOME FROM LONG TERM CAPITAL GAINS AND THE SAME HAS BEEN ALLOW ED BY THE LD.CIT(A) AS THE REVENUE IS NOT IN APPEAL ON THE SA ID ISSUE, THE ISSUE HAS REACHED FINALITY. THE LD. ASSESSING OFFICER SHA LL VERIFY THE FORM 26AS IN RESPECT OF TDS IN REGARD TO M/S.TENSHI ASSI STED LIVING (P) LTD. AND AFTER VERIFICATION, GIVE CREDIT TO THE SAME TO THE APPROPRIATE YEAR TO WHICH IT RELATES. IN THE CIRCUMSTANCES, THE ISSU E IN THE APPEALS OF THE REVENUE AND THE ASSESSEE ARE RESTORED TO THE F ILE OF LD. ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRANTING THE ASSE SSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE AND T HE APPEAL OF THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 25 TH OCTOBER, 2018, AT CHENNAI. SD/ - SD/ - ( ) (S. JAYARAMAN) ' # /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ # / JUDICIAL MEMBER ) $ / CHENNAI * / DATED: 25 TH OCTOBER, 2018. K S SUNDARAM + !%,- . -% / COPY TO: 1 . / APPELLANT 3. # /% () / CIT(A) 5. -23 !%4 / DR 2. !' / RESPONDENT 4. # /% / CIT 6. 35 6$ / GF