S.H.Mohamed Nowfel, CHENNAI V. ACIT, CHENNAI

ITA 478/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9314 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 03-03-2016
• Court: TRIBUNAL
• Assessee Lawyers: V SAHAYA PUSHPARAJ
• Keywords: Business income
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . , . !' , # % & [ BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ] ./ I.T.A.NO.478/MDS/2016 / ASSESSMENT YEAR : 2010-11 SHRI S.H. MOHAMED NOWFEL NO.2/658, EAST COAST ROAD NEELANGARAI CHENNAI 600 041 VS. THE ASSTT. COMMISS IONER OF INCOME-TAX NON-CORPORATE CIRCLE 15(1) CHENNAI [PAN AJBPM 6809 P ] ( '( / APPELLANT) ( )*'( /RESPONDENT) / APPELLANT BY : SHRI V. SAHAYA PUSHPARAJ, ADVOCATE /RESPONDENT BY : SHRI GURU B ASHYAM, JCIT / DATE OF HEARING : 11 - 05 - 2016 / DATE OF PRONOUNCEMENT : 12 - 05 - 2016 !' / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-15, CHENNA I, DATED 28.10.2015 IN I.T.A.NO. 284/A-15/14-15, FOR ASSESSM ENT YEAR 2010-11. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE IS AN INDIVI DUAL ENGAGED IN THE BUSINESS OF REAL ESTATE. HE HAS NOT FILED T HE RETURN OF INCOME. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS N OTED THAT AS PER ITA NO.478/16 :- 2 -: AIR INFORMATION, THE ASSESSEE AND ANOTHER PERSON S OLD AN IMMOVEABLE PROPERTY FOR ` 4 CRORES. WITH THE ABOVE OBSERVATION, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE ACT AND ASSESSMENT WAS COMPLETED U/S 147 R.W.S 143(3) OF THE ACT. ACCORD ING TO THE ASSESSING OFFICER, THE CLAIM OF THE ASSESSEE THAT HIS SHARE OF ` 1,93,71,600/- AS EXEMPT ASSUMING SALE OF AGRICULTUR AL LAND WAS NOT ACCEPTABLE FOR THE REASON THAT THE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE. THEREFORE, THE ASSESSING OFFICER HAS TREA TED THE INCOME AS BUSINESS INCOME AND ACCORDINGLY TAXED THE SAME. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E CIT(A). THE CIT(A) HAS DISMISSED THE APPEAL ON THE GROUND T HAT THE ASSESSEE HAS FAILED TO PAY THE ADMITTED TAX AND THEREFORE, T HE APPEAL IS NOT MAINTAINABLE. AGGRIEVED, THE ASSESSEE IS IN APPEA L BEFORE THE TRIBUNAL. 4. BEFORE US, THE LD. COUNSEL HAS SUBMITTED THAT THE ADMITTED TAX HAS ALREADY BEEN PAID BY THE ASSESSEE AND THER EFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE CIT(A) FOR DECID ING AFRESH. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE HAS RELIED ON THE JUDGMENT OF THE HON'BLE MADRAS HIGH C OURT IN THE CASE OF S. ALAGARSWAMY VS ITO, [2008]296 ITR 43. ITA NO.478/16 :- 3 -: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDE RS OF THE AUTHORITIES BELOW. THE CIT(A) HAS DISMISSED TH E APPEAL OF THE ASSESSEE ON THE GROUND THAT THE APPEAL IS NOT MAINT AINABLE AS THE ADMITTED TAX HAS NOT BEEN PAID. HOWEVER, BEFORE US , THE LD. COUNSEL HAS SUBMITTED THAT THE ASSESSEE HAS ALREADY PAID T HE ADMITTED TAX AND THEREFORE, THE APPEAL MAY BE RESTORED TO THE FI LE OF THE CIT(A). SO FAR AS THE CASE LAW RELIED UPON BY THE LD. DR IN TH E CASE OF S. ALAGARSWAMY (SUPRA) IS CONCERNED, THE HON'BLE MADRA S HIGH COURT HAS HELD THAT PAYMENT OF ADMITTED TAX IS A CONDITION PR ECEDENT TO FILE AN APPEAL. IN THE PRESENT CASE, THE ASSESSEE HAS FAI LED TO PAY THE ADMITTED TAX BEFORE FILING THE APPEAL BEFORE THE CI T(A). HOWEVER, SUBSEQUENTLY, THE ASSESSEE HAS PAID THE ADMITTED T AX. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE ENT IRE ISSUE INVOLVED IN THIS APPEAL BACK TO THE FILE OF THE CIT(A) FOR DEC IDING ON MERIT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2016, AT CHENNAI. SD/- SD/- ( # . $ % $ ) (A. MOHAN ALANKAMONY) !& / ACCOUNTANT MEMBER ' ( ' . ! ) ) ( V. DURGA RAO ) * !& / JUDICIAL MEMBER +* / CHENNAI ,! / DATED: 12 TH MAY, 2016 RD ITA NO.478/16 :- 4 -: !''' -.'/. / COPY TO: ' 1 . / APPELLANT 4. ' 0 / CIT 2. / RESPONDENT 5. .1)' 2 / DR 3. ' 0'(3 / CIT(A) 6. )4'5 / GF