SHRI. T SHIVAJI, VELLORE V. ITO WARD 2, VELLORE

ITA 415/CHNY/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4989 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SALAI VARUN ISAI AZHAGAN
• Keywords: Tangible material; Difference of opinion; Change of opinion

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH : CHENNAI , . , [BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ] !' ./I.T.A. NO.415/CHNY/2018. #$% &$ / ASSESSMENT YEAR : 2009-2010. SHRI. T. SHIVAJI, HASATH STREET, MELVISHARAM, VELLORE 632 509. VS. THE INCOME TAX OFFICER, WARD -2, VELLORE [PAN DEPPS 7396B] ( / APPELLANT) ( /RESPONDENT) !' '( ) * / APPELLANT BY : MR. SALAI VARUN ISAI AZHAGAN, ADV +,'( ) * /RESPONDENT BY : MS. R. ANITHA, IRS, JCIT. # - ) . /DATE OF HEARING : 13-02-2020 /0&% ) . /DATE OF PRONOUNCEMENT : 18-02-2020 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-13, CHENNAI (CIT(A) FOR SHORT) DATED 19.09.2017 FOR THE ASSES SMENT YEAR (AY) 2009-2010. ITA NO.415 /2018 :- 2 -: 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL AND ENGAGED IN THE B USINESS OF RUNNING CABLE TV AND REAL ESTATE. THE RETURN OF I NCOME FOR THE AY 2009-10 WAS NOT FILED VOLUNTARILY U/S.139 OF THE I NCOME TAX ACT, 1961 (FOR SHORT THE ACT). CONSEQUENTLY BASED UPON THE INFORMATION RECEIVED FROM CIB THAT ASSESSEE MADE CASH DEPOSITS OF RS.3 6,35,500/- IN SAVING BANK ACCOUNT, SURVEY U/S.133A OF THE ACT WA S CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE, NOTICE U/S.148 O F THE ACT WAS ISSUED TO THE ASSESSEE ON 11.10.2011. IN RESPONSE T O WHICH, ASSESSEE HAD FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 DISCLOSING TOTAL INCOME OF E2,45,000/-. AGAINST THE SAID RETU RN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE INCOME TAX OFFICER, WARD I(6), VELLORE VIDE ORDER DATED 24.03.2016 PASSED U/S.144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AS THE ASSESSEE H AD NOT COMPLIED WITH SEVERAL NOTICES CALLING FOR CERTAIN INFORMATION AT TOTAL INCOME OF E33,03,410/-. WHILE DOING SO, THE ASSESSING OFFICE R MADE FOLLOWING ADDITIONS. (I) CASH FOUND AT THE TIME OF SURVEY 2,50,000/- (II) CONSTRUCTION OF 1 ST FLOOR & SECOND FLOOR 10,00,000/- (III) UNDER SL.NO.5(C) OF THE SWORN STATEMENT PROFIT FROM FINANCE BUSINESS 35,000/- PER MONTH. 4,20,000/- (IV) NET INCOME FROM CABLE TV BUSINESS 1,20,000/- (V) TOTAL CASH CREDIT IN SB A/C. 36,35,000/- ITA NO.415 /2018 :- 3 -: 3. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A) CHALLENGING THE VERY VALIDITY OF THE REASSE SSMENT PROCEEDINGS AS WELL AS THE MERITS OF THE ADDITION. THE LD. CIT( A) HAD CONFIRMED THE VALIDITY OF THE RE-ASSESSMENT, HOWEVER OBSERVED THA T ASSESSEE HAS NOT CHALLENGED THE MATTER ON MERITS. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), TH E APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. IT I S STATED THAT THE LD. CIT(A) OUGHT NOT HAVE UPHELD THE VALIDITY OF RE-ASS ESSMENT PROCEEDINGS AS THERE IS NO FRESH TANGIBLE MATERIAL. IT IS PROMOTED ONLY BY MERE CHANGE OF OPINION, PLACING RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE KELVINATOR OF INDIA LTD (2010) 320 ITR 561 . ON MERITS, HE SUBMITTED THAT NO ADDITION IS WARR ANTED HAVING REGARD TO THE FACTS OF THE CASE. 5. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESE NTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. SUBMISSION OF THE ASSESSEE IS THAT THE REOP ENING IS PROMOTED BY MERE CHANGE OF OPINION CANNOT BE ACCEPTED, IN A S MUCH AS, SOME INCRIMINATING MATERIALS WERE FOUND AS RESULT OF SU RVEY OPERATIONS. FRESH MATERIALS WERE IN THE FORM OF CASH AND SOURCE FOR CONSTRUCTION OF HOUSE AND SOURCE FOR CASH DEPOSITS IN SBI BANK RE MAINED ITA NO.415 /2018 :- 4 -: UNEXPLAINED. THESE MATERIALS UNDOUBTEDLY CONSTITU TE FRESH MATERIALS ENABLING THE ASSESSING OFFICER TO FORM AN OPINION T HAT INCOME ESCAPED ASSESSMENT. THE RATIO DECISION OF HON'BLE SUPREME COURT IN THE CASE OF KELVINATOR OF INDIA LTD (SUPRA) CANNOT BE APPLIED TO THE FACTS OF THE CASE, THEREFORE WE CONFIRM THE ORDER OF THE LD. CI T(A). HOWEVER, WE FIND THAT THE LD. CIT(A) HAD NOT ADJUDICATED ON THE MERITS OF THE ADDITION DESPITE RAISING GROUNDS OF APPEAL. THEREF ORE, WE REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJ UDICATION ON THE MERITS OF THE APPEAL AFTER AFFORDING DUE OPPORTUNITY OF HE ARING TO THE APPELLANT IN ACCORDANCE WITH LAW. HENCE, APPEAL FIL ED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.418/CHNY/2018 FOR ASSESSMENT YEAR 2009-2010 IS P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 18TH DAY OF FEBRUARY, 2020 , AT CHENNAI. SD/- SD/- ( . ) (DUVVURU RL REDDY) ! '# /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER 1 #- / CHENNAI 2# / DATED:18TH FEBRUARY, 2020. KV 3 ) +.4 5' !6 5&. / COPY TO: 1 . !' '( / APPELLANT 3. 7. (!' ) / CIT(A) 5. 5 :; +.#< / DR 2. +,'( / RESPONDENT 4. 7. / CIT 6. ;$ =- / GF ITA NO.415 /2018 :- 5 -: