Mahaveer Kumar, CHENNAI V. ACIT, CHENNAI

ITA 371/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9549 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 18-02-2016
• Court: TRIBUNAL
• Assessee Lawyers: R PADMANABHAN
• Keywords: Revision of order
• Section: 143(3); 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NOS.349/MDS/2015 & 371/MDS/2016 / ASSESSMENT YEAR 2011-12 SHRI MAHAVEER KUMAR NO.44/9, E.K. AGRAHARAM PARK TOWN CHENNAI 600 006 VS. THE ASSTT. C OMMISSIONER OF INCOME-TAX BUSINESS CIRCLE - XI CHENNAI [PAN AHTPM 1979 Q] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI R. PADMANABHAN, CA /RESPONDENT BY : SHRI P. RADHAKRIAHN AN, JCIT FOR SHRI PATHLAVATH PEERYA, CIT / DATE OF HEARING : 12 - 04 - 2016 ! / DATE OF PRONOUNCEMENT : 05 - 0 5 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER I.T.A.NO.349/MDS/2015 FILED BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER OF THE ADMINISTRATIVE COMMISSIONE R-IX, CHENNAI, DATED 4.12.2014 AND PERTAINS TO ASSESSMENT YEAR 201 0-11. I.T.A.NO.341/MDS/2016 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, D ATED 7.1.2016. ITA NO.349/15 & 371/16 :- 2 -: SINCE BOTH THE APPEALS PERTAIN TO THE SAME ASSESSE E, WE HEARD THEM TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORD ER. 2. SHRI R. PADMANABHAN, LD. REPRESENTATIVE FOR THE AS SESSEE SUBMITTED THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AFTER CALLING FOR ALL THE MATERI AL PARTICULARS REQUIRED FOR COMPLETING THE ASSESSMENT. HOWEVER, THE CIT IN THE GUISE OF REVISING THE ORDER U/S 263 OF THE ACT, FOUND THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE MATTER IN THE LIGHT OF THE PRO VISIONS OF SECTIONS 40A(3), 68 AND 269SS/T OF THE ACT. THE CIT FURTHER FOUND THAT THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND INDEPEND ENTLY TO THE MATERIALS AVAILABLE ON RECORD AND NO PROPER ENQUIRY WAS CONDUCTED. ACCORDINGLY, THE CIT DIRECTED THE ASSESSING OFFICER TO CONSIDER THE EXPLANATION OF THE ASSESSEE AND VERIFY THE DETAILS AND THEREAFTER DECIDE THE MATTER IN ACCORDANCE WITH LAW. ACCORDIN G TO THE LD. REPRESENTATIVE, SINCE THE ASSESSING OFFICER HAS APP LIED HIS MIND AFTER CALLING FOR THE NECESSARY DETAILS, THE EXERCISE OF POWER U/S 263 BY THE CIT IS NOT JUSTIFIED. 3. ON THE CONTRARY, SHRI P. RADHKRISHNAN, LD. DEPARTME NTAL REPRESENTATIVE SUBMITTED THAT THE CIT FOUND THAT TH E ASSESSING OFFICER HAS NOT EXAMINED THE SOURCE FOR CASH DEPOSITED IN T HE BANK ACCOUNT DURING THE RELEVANT ASSESSMENT YEAR. ACCORDING TO THE LD. DR, THE ITA NO.349/15 & 371/16 :- 3 -: ASSESSEE HAS DEPOSITED `35,42,14,900/- IN THE BANK ACCOUNT IN CASH. THE ASSESSEE ALSO HAD A TIME DEPOSIT OF ` 30,97,51,500/- . THE ASSESSING OFFICER HAS NOT EXAMINED THE ABOVE DE POSITS IN THE LIGHT OF THE PROVISIONS OF SEC. 40A(3), 68 AND 269SS/T O F THE ACT. THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND AND HE H AS NOT DISCUSSED ANYTHING IN THE ASSESSMENT ORDER. ACCORDING TO THE LD. DR, THE ASSESSING OFFICER HAS NOT MADE ANY PROPER ENQUIRY W ITH REGARD TO THE SOURCE FOR CASH DEPOSIT IN THE BANK ACCOUNT. THERE FORE, THE CIT(A) HAS RIGHTLY INITIATED THE PROCEEDINGS U/S 263 OF T HE ACT AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE SAME. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. I T IS NOT IN DISPUTE THAT THE ASSESSEE MADE CASH DEPOSIT IN THE BANK A CCOUNT DURING THE RELEVANT ASSESSMENT YEAR. THE ASSESSING OFFICER HA S NOT DISCUSSED ANYTHING IN THE ASSESSMENT ORDER REGARDING THIS CAS H DEPOSIT. AS RIGHTLY OBSERVED BY THE CIT, THE DEPOSIT MADE BY TH E ASSESSEE IN THE BANK WAS NOT SUBJECT MATTER OF DISCUSSION IN THE AS SESSMENT ORDER. EVEN THOUGH THE ASSESSEE CLAIMS THAT THE ASSESSING OFFICER CALLED FOR RELEVANT DETAILS, THE SAME DOES NOT REFLECT IN THE ASSESSMENT ORDER. THEREFORE, IT IS OBVIOUS THAT THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY WITH REGARD TO THE CASH DEPOSIT. THE A SSESSING OFFICER HAS ITA NO.349/15 & 371/16 :- 4 -: NOT APPLIED HIS MIND ON THE MATERIAL AVAILABLE ON R ECORD BEFORE CONCLUDING THE ASSESSMENT. THEREFORE, THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT THE CIT HAS RIGHTLY EXERCIS ED HIS POWER U/S 263 OF THE ACT AND DIRECTED THE ASSESSING OFFICER T O EXAMINE THE MATTER AFRESH AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT. ACCORDINGLY, THE SAME IS CONFIRM ED. 5. NOW COMING TO I.T.A.NO.371/MDS/2016, SHRI R. PADMANABHAN, LD. REPRESENTATIVE FOR THE ASSESSEE S UBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSE SSEE ON THE GROUND THAT THE ASSESSEE FAILED TO SUBMIT THE DETAILS AND EVIDENCES TO SUPPORT THE CLAIM. ACCORDING TO THE LD. REPRESENTATIVE, TH E ASSESSING OFFICER DISALLOWED A SUM OF ` 15,29,896/- TOWARDS OCTROI. THE ASSESSING OFFICER HAS ALSO DISALLOWED ANOTHER SUM OF ` 1,57,69,472.78 TOWARDS SELLING AND ADMINISTRATIVE EXPENSES, AND UNPROVED SUNDRY CREDITORS OF ` 3,81,27,626/-. THE ASSESSEE, IN FACT, PRODUCED A LL THE MATERIALS INCLUDING THE BOOKS OF ACCOUNT BEFORE THE CIT(A). HOWEVER, THE CIT(A) REFUSED TO ACCEPT THE MATERIAL FILED BEFORE HIM ON THE GROUND THAT THE SAME WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE WAS BED RIDDEN FROM NOVEMBER 2013 TO JANUARY 2014, THEREFORE, HE COULD NOT PRODUCE THE ITA NO.349/15 & 371/16 :- 5 -: BOOKS OF ACCOUNT AND OTHER MATERIALS BEFORE THE ASS ESSING OFFICER. WHEN THIS WAS BROUGHT TO THE NOTICE OF THE CIT(A), HE OBSERVED THAT THERE WAS NO EXPLANATION FROM THE ASSESSEE FOR NON -APPEARANCE BEFORE THE ASSESSING OFFICER FROM 28.9.2012 TO NOVE MBER 2013. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER ONLY BECAUSE OF HIS IL LNESS, THEREFORE, AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PRODUC E THE MATERIAL BEFORE THE ASSESSING OFFICER SO THAT THE ASSESSMEN T CAN BE MADE BY COMPUTING THE CORRECT TAXABLE INCOME. 6. ON THE CONTRARY, SHRI P. RADHAKRISHNAN, LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER GAVE MANY OPPORTUNITIES TO THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT AND OTHER MATERIALS. THOUGH THE ASSESSEE CLAIMED BEFO RE THE ASSESSING OFFICER THAT HE WAS BED RIDDEN CONTINUALLY FROM NOV EMBER 2013 TO JANUARY 2014, THERE WAS NO EXPLANATION FORTHCOMING FROM THE ASSESSEE FOR HIS NON-APPEARANCE BEFORE THE ASSESSIN G OFFICER FROM 28.9.2012 TO NOVEMBER, 2013. THEREFORE, THE CIT(A) HAS RIGHTLY FOUND THAT NO FURTHER OPPORTUNITY CAN BE GIVEN TO T HE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT. ACCORDING TO THE LD. DR, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITIONS. ITA NO.349/15 & 371/16 :- 6 -: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY, THE ASSESSEE HAS NOT FILED ANY MATERIAL OR BOOKS OF ACC OUNT BEFORE THE ASSESSING OFFICER. THE ASSESSEE NOW CLAIMS THAT HE WAS BED RIDDEN AND THEREFORE, HE COULD NOT PRODUCE THE SAME BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAS FILED ALL THE MATERIALS BEFORE THE CIT(A), HOWEVER, THE CIT(A) REJECTED THE SAME ON THE GROUND THAT THE SAME WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. UND ER THE SCHEME OF THE INCOME-TAX ACT, 1961, THE ASSESSING OFFICER AND THE CIT(A) ARE EXPECTED TO COMPUTE THE CORRECT TOTAL TAXABLE INCO ME ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. THE FACT THAT TH E ASSESSEE WAS BED RIDDEN AND HE COULD NOT MOVE OUT FROM NOVEMBER 2013 TO JANUARY 2014 IS NOT IN DISPUTE. THE DISPUTE IS ONLY WITH R EGARD TO THE NON- APPEARANCE BEFORE THE ASSESSING OFFICER FROM 28.9. 2012 TO NOVEMBER 2013. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE REVENUE ACCEPTED THAT THE ASSESSEE WAS BED RIDDEN FROM NOVEMBER 2013 TO JANUARY 2014, THE CIT(A) OUGHT TO HAVE GIVE N AN OPPORTUNITY TO THE ASSESSEE BY ACCEPTING THE ADDITIONAL MATERI AL FIELD BEFORE HIM IN THE FORM OF BOOKS OF ACCOUNT AND OTHER MATERIAL. HOWEVER, THE CIT(A) FAILED TO ACCEPT THE MATERIAL FILED BY THE ASSESSEE. MERELY BECAUSE THERE WAS SOME DELAY ON THE PART OF THE AS SESSEE, THAT ITA NO.349/15 & 371/16 :- 7 -: CANNOT BE A REASON TO LEVY TAX ON THE ASSESSEE CON TRARY TO THE PROVISIONS OF LAW. THE ASSESSING OFFICER/CIT(A) HA S TO COMPUTE THE CORRECT TAXABLE INCOME AS PER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. THEREFORE, EXAMINING THE MATERIAL FILED BY T HE ASSESSEE BEFORE THE CIT(A) WILL NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY EVEN THOUGH THERE WAS A DELAY IN FILING THE SAME BY THE ASSESSEE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DELAY WAS BEYOND THE CONTROL OF THE ASSESSEE. THEREFORE, THERE IS NOTHING WRONG IN EXAMINING THE MATERIAL FILED BY THE ASSESSEE AND C OMPUTE THE CORRECT TAXABLE INCOME. GIVING ONE MORE OPPORTUNITY FOR PR ODUCING THE MATERIAL BEFORE THE ASSESSING OFFICER WOULD NOT PRE JUDICE THE INTEREST OF THE REVENUE IN ANY WAY. THIS TRIBUNAL IS OF TH E CONSIDERED OPINION THAT GIVING SUCH AN OPPORTUNITY TO THE ASSESSEE WO ULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE. ACCORDINGLY, THE ORD ERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE IS R EMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SH ALL REEXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE INCLUDING THE BOOKS OF ACCOUNT AND THEREAF TER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONA BLE OPPORTUNITY TO THE ASSESSEE. ITA NO.349/15 & 371/16 :- 8 -: 8. IN THE RESULT, I.T.A.NO.349/MDS/2015 IS DISMISSED A ND I.T.A.NO. 371/MDS/2016 IS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MAY, 2016, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 5 TH MAY, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF