V.Tamilselvan, CHENNAI V. ACIT, CHENNAI

ITA 57/CHNY/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1147 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-03-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 10-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G BHASYAM
• Assessee Lawyers: G STANLY
• Keywords: Unexplained investment
• Section: 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER] I.T.A.NO.57/MDS/2013 ASSESSMENT YEAR : 2002-2003. SHRI. V. TAMILSELVAN, NO.48B, ALADI PILLAIYAR KOIL STREET, KANCHEEPURAM. VS THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(3), CHENNAI 600 034. [PAN ABHPT8446M ] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. G. STANLY RESPONDENT BY : SHRI. G. BHASYAM, JCIT. DATE OF HEARING : 19-03-2013 DATE OF PRONOUNCEMENT : 21-03-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD.CIT (A)-I, CHENNAI, DATED 2.11.2012. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APP EAL. 01. THE ORDER OF THE COMMISSIONER OF INCOM E TAX (A) DATED 02.11.2012 TO THE EXTENT TO WHICH IT CONFIRMS THE A DDITIONS MADE BY THE ASSESSING OFFICER, IS ERRONEOUS, ILLEGA L, CONTRARY TO LAW AND FACTS AND LIABLE TO BE REVERSED. I.T.A.NO.57/MDS/2013 :- 2 -: 02. THE COMMISSIONER OF INCOME TAX (A) ERRED IN REJECTING THE APPELLANT APPEAL WITHOUT GIVING AN EFFECTIVE OPPOR TUNITY OF HEARING AND WITHOUT DUE CONSIDERATION OF THE VARIOU S PARTICULARS FILED BY THE APPELLANT. 03. THE COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE SEEN THAT THE ADDITION IS MADE MERELY ON THE BASIS OF SURMISE S, CONJECTURES AS WELL AS WITHOUT ANY SUPPORTING EVID ENCES. 04. THE COMMISSIONER OF INCOME TAX (A) FAILED T O APPRECIATE THE FACT THAT THE APPELLANT HAS OFFERED REASONABLE EXPL ANATIONS AND PRODUCED ALL EVIDENCES BEFORE THE ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE TRANSACTIONS. 05. THE COMMISSIONER OF INCOME TAX (A) OUGHT TO HAV E NOTED THAT THE APPELLANT HAS FURNISHED ALL DETAILS RELEVANT TO THE INVESTMENTS BEFORE THE ASSESSING OFFICER SUCH AS CO NFIRMATION LETTERS, BANK STATEMENT AND NAMES AND ADDRESSES OF PERSON WHOM THE LOANS RECEIVED. THE ONUS FOR JUSTIFICATIO N OF THE CREDITS HAS BEEN DISCHARGED IN FULL. THE ADDITIONS SUSTAINED AND THUS, LIABLE TO BE CANCELLED. 06. THE LEVY OF INTEREST U/S 234A AND B IS LIABLE T O BE CANCELLED IN FULL. 07. ANY OTHER GROUND THAT MAY BE RAISED AT THE TIME OF PERSONAL HEARING. 3. THE ASSESSEE IS A CIVIL CONTRACTOR AND DID NOT FILE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2002-03. THE ASSESSI NG OFFICER ISSUED NOTICE U/S. 148 ON 09.11.2006. THE ASSESSEE FILED HIS RETURN IN RESPONSE TO THE NOTICE ON 13.1.2007 ADMITTING AN IN COME OF RS. 42,588/-. THE ASSESSING OFFICER, SUBSEQUENTLY, SOU GHT DETAILS ABOUT THE ADVANCES RECEIVED FROM 13 PERSONS BY THE ASSESSEE. THE ASSESSEE DID NOT FURNISH THE LIST OF PERSONS AND MO DES OF RECEIPT AND DID NOT RESPOND TO FURTHER DETAILS AS SOUGHT BY THE ASSESSING OFFICER. I.T.A.NO.57/MDS/2013 :- 3 -: THE ASSESSING OFFICER ADDED THE AMOUNT OF ADVANCE O F RS. 14 LAKHS AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT, TO THE IN COME OF THE ASSESSEE. . 4. THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT (A). TH E LD.CIT(A) ISSUED NOTICES OF HEARING ON THE FOLLOWING DATES:- 01 01.03.2011, 02. 11.04.2011, 03. 17.09.2012, 04. 04.10.2012, 05. 15.10.2012. 06. 25.10.2012 THE ASSESSEE DID NOT APPEAR ON THE DATES OF HEARIN G FIXED BY THE LD.CIT(A). THEREFORE, LD.CIT(A) PROCEEDED TO D ECIDE THE APPEAL EX-PARTE WITHOUT THE PRESENCE OF THE ASSESSEE. THE LD.CIT(A) CALLED FOR THE REMAND REPORT ON 17.03.2010 FROM THE ASSESSING OFFICER ON THE ADVANCE OF RS.14 LAKHS RECEIVED BY THE ASSESSEE. T HE ASSESSING OFFICER SUBMITTED HIS REMAND REPORT DATED 12.7.2012 WHICH WAS RECEIVED BY THE LD.CIT(A) ON 19.7.2012. BASED ON T HE REMAND REPORT, THE LD.CIT(A) DELETED THE ADDITION OF ` 1.80 LAKHS AND CONFIRMED THE BALANCE ADDITION OF ` 12.20 LAKHS. 5. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMI TTED THAT THE ASSESSEE COULD NOT BE PRESENT ON THE VARIOUS DA TES FIXED BY THE LD. CIT(A) AND THE APPEAL WAS DECIDED EX-PARTE BY THE L D.CIT(A). HE I.T.A.NO.57/MDS/2013 :- 4 -: SUBMITTED THAT, THEREFORE, THE ASSESSEE DID NOT HAV E THE BENEFIT TO RECEIVE THE COPY OF THE REMAND REPORT AND MEET THE OBJECTIONS OF THE ASSESSING OFFICER IN THE REMAND REPORT. HE SUBMITTE D THAT HE UNDERTAKES TO APPEAR BEFORE THE LD.CIT(A) AND MEET THE REQUIREMENT OF THE ASSESSING OFFICER AS POINTED OUT IN THE REMA ND REPORT AS HE HAS ALL NECESSARY MATERIALS IN CONNECTION WITH THE OF ADVANCES OF ` 14 LAKHS. HE PRAYED THAT IN THE INTEREST OF JUSTICE, O NE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO APPEAR BEFORE THE LD.CIT(A). 6. THE LD. DEPARTMENTAL REPRESENTATIVE OBJECTED TO THE PLEA OF THE ASSESSEE FOR RESTORING THE MATTER BACK TO THE FILE OF THE LD.CIT(A). 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSIN G THE MATERIALS ON RECORD, WE FIND THAT THE ADDITION OF ` 12.20 LAKHS FOR ADVANCE RECEIVED BY THE ASSESSEE HAS BEEN MADE AND CONFIRMED IN THE HANDS OF THE ASSESSEE. WE ARE ALSO ALIVE TO THE FAC T THAT THE ASSESSEE DID NOT AVAIL OF THE OPPORTUNITIES PROVIDED BY THE LD.CIT(A) FOR BEING PRESENT ON THE DATES OF HEARING. IN THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT IN THE INTERE ST OF JUSTICE ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LD.CIT(A). WE, THEREFORE, SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMAND THE MATTER BACK TO HIS FILE FO R ADJUDICATING THE I.T.A.NO.57/MDS/2013 :- 5 -: ISSUE OF ADDITION OF ` 12.20 LAKHS AFRESH AFTER SUPPLYING THE COPY OF THE REMAND REPORT TO THE ASSESSEE AND CONSIDERING THE S UBMISSIONS OF THE ASSESSEE THEREON. 8. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD.CIT(A) SUO MOTU WITHIN ONE MONTH FROM THE DATE OF THIS ORDER F OR FIXING THE DATE OF HEARING OF THE APPEAL. THE ASSESSEE IS FURTHER DIRECTED TO FILE ALL THE RELEVANT MATERIALS HE WISHES TO RELY UPON IN SUPPOR T OF THE ADVANCES OF RS.12.20 LAKHS BEFORE THE LD.CIT(A) AS AND WHEN CAL LED UPON TO DO SO. 9. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 21ST OF MARCH, 2013, AT CHENNAI. SD/- SD/- (V. DURGA RAO) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED:21ST MARCH, 2013 KV COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR