S.Venkatachalam, Tiruppur V. ITO, Tiruppur

ITA 615/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7712 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 08-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 27-03-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T BANUSEKAR
• Keywords: Period of limitation
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.615/MDS/2015 / ASSESSMENT YEAR : 2008-09 SHRI S.VENKATACHALAM NO.1, THILLAINAGAR DHARAPURAM ROAD TIRUPUR 641 608 VS. THE INCOME TAX OFFICER WARD 1(5) TIRUPUR [PAN ACGPV 2916 G ] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI T. BANUSEKAR, CA /RESPONDENT BY : SHRI A.B. KOLI, JCIT / DATE OF HEARING : 11 - 02 - 201 6 ! / DATE OF PRONOUNCEMENT : 18 - 03 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, COIMB ATORE, DATED 29.7.2013 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. SHRI T.BANUSEKAR, LD. REPRESENTATIVE FOR THE ASSES SEE SUBMITTED THAT THERE WAS A DELAY OF 532 DAYS IN FIL ING THE APPEAL BEFORE THIS TRIBUNAL. ACCORDING TO THE LD. REPRESE NTATIVE, THE ASSESSEE ENGAGED ONE SHRI CHANDRA MOHAN, INCOME TAX PRACTITIONER ITA NO. 615/15 :- 2 -: TO FILE APPEAL BEFORE THIS TRIBUNAL. IN FACT, SHRI CHANDRA MOHAN PREPARED THE GROUNDS OF APPEAL AND OBTAINED THE SIG NATURE OF THE ASSESSEE ON 20.12.2013. THE SAID CHANDRA MOHAN HAN DED OVER THE APPEAL PAPERS TO ONE SHRI SARAVANAN WITH THE INSTRU CTION TO FILE THE SAME BEFORE THIS TRIBUNAL. THE SAID SHRI CHANDRA M OHAN HAS ALSO PAID THE APPEAL FEE ON 23.12.2013. THE COPY OF THE CHAL LAN IS PRODUCED BY THE ASSESSEE BEFORE THIS TRIBUNAL. ACCORDING TO T HE LD. REPRESENTATIVE, SHRI SARAVANAN, TO WHOM THE MATTER WAS ENTRUSTED FOR FILING THE APPEAL BEFORE THIS TRIBUNAL DID NOT FIL E THE APPEAL. THE SAID SHRI SARAVANAN APPEARS TO HAVE HANDED OVER THE FILE AGAIN TO THE SHRI CHANDRA MOHAN ON 31.12.2013. THE SAID CHANDRA MOHAN WAS UNDER THE IMPRESSION THAT SHRI SARAVANAN HAS ALREADY FIL ED THE APPEAL AND ONLY OFFICE PAPERS WERE HANDED OVER TO HIM. THEREA FTER, THE ASSESSEE RECEIVED A LETTER FROM THE DEPARTMENT ASKING TO PAY THE OUTSTANDING ARREARS AND THEN THE ASSESSEE APPROACHED SHRI CHAN DRA MOHAN AND REQUESTED FOR ACKNOWLEDGMENT FOR FILING APPEAL BEF ORE THIS TRIBUNAL. HOWEVER, SHRI CHANDRA MOHAN COULD NOT GIVE THE ACKN OWLEDGEMENT FOR FILING THE APPEAL BEFORE THIS TRIBUNAL. THEREA FTER THE ASSESSEE HAS MADE ENQUIRIES AND FOUND THAT NO APPEAL WAS FILED E VEN THOUGH THE FEES WAS PAID ON 23.12.2013. AFTER THAT THE APPEAL WAS FILED BEFORE THIS TRIBUNAL HENCE, THERE WAS A DELAY OF 532 DAYS. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE WAS PREVENTED FRO M SUFFICIENT CAUSE ITA NO. 615/15 :- 3 -: FOR FILING THE APPEAL BEFORE THIS TRIBUNAL. THEREF ORE, THE DELAY OF 532 DAYS MAY BE CONDONED. 3. ON THE CONTRARY, SHRI A.B KOLI, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE WAS NO SUFFICIE NT CAUSE FOR NOT FILING THE APPEAL BEFORE THIS TRIBUNAL. PLACING RE LIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA VS ACIT, [2010] 186 TAXMAN 8, THE LD. DR SUBMITTED THAT ON IDENTICA L SET OF FACTS, THE MADRAS HIGH COURT CONFIRMED THE ORDER OF THIS TRIBU NAL WHEREIN A DELAY OF 558 DAYS WAS NOT CONDONED. THEREFORE, ACC ORDING TO THE LD. DR, THE DELAY OF 532 DAYS IN FILING THE APPEAL CANN OT BE CONDONED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AD MITTEDLY, THERE WAS A DELAY OF 532 DAYS IN FILING THE APPEAL BEFORE THI S TRIBUNAL. THE ASSESSEE ADMITTEDLY PAID APPEAL FEES OF ` 10,000/- ON 23.12.2013. THE ASSESSEE HAS FILED COPY OF THE CHALLAN BEFORE THIS TRIBUNAL. THE CLAIM OF THE ASSESSEE IS THAT HE ENGAGED SHRI CHAN DRA MOHAN, A TAX PRACTITIONER, FOR FILING THE APPEAL BEFORE THIS TRI BUNAL. IN FACT, THE APPEAL WAS PREPARED AND THE MATTER WAS ENTRUSTED TO SHRI SARAVANAN TO FILE THE SAME. HOWEVER, SHRI SARAVANAN COULD NO T FILE THE SAME BEFORE THIS TRIBUNAL AND ONLY AFTER RECEIVING LETTE R FROM THE DEPARTMENT DEMANDING THE OUTSTANDING AMOUNT, THE A SSESSEE APPROACHED SHRI CHANDRA MOHAN ABOUT THE APPEAL FILE D BEFORE THIS ITA NO. 615/15 :- 4 -: TRIBUNAL. THEN ONLY HE CAME TO KNOW THAT NO APPEAL WAS FILED BEFORE THIS TRIBUNAL. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS NO NEGLIGENCE ON THE PART OF THE AS SESSEE IN TAKING STEPS TO FILE THE APPEAL. THE ASSESSEE, PRUDENTLY ENGAGED A TAX PRACTITIONER AND UNFORTUNATELY, THE TAX PRACTITIONE R COULD NOT TAKE SUFFICIENT STEPS FOR ENSURING THAT THE APPEAL IS FI LED BEFORE THIS TRIBUNAL. IF AT ALL THERE IS A NEGLIGENCE, IT IS ON THE PART OF SHRI CHANDRA MOHAN, THE TAX PRACTITIONER, AND NOT ON THE PART OF THE ASSESSEE. 5. WE HAVE GONE THROUGH THE JUDGMENT OF THE MADRAS HIG H COURT IN THE CASE OF MADHU DADHA (SUPRA). IN THE C ASE BEFORE THE MADRAS HIGH COURT, THE ASSESSEE IS A PARTNER IN A FIRM AND ALSO A SHAREHOLDER IN M/S TAMIL NADU DADHA PHARMACEUTICALS LTD. PURSUANT TO A SEARCH CONDUCTED IN THE CASE OF SUN PHARMA GRO UP OF INDUSTRIES AT MUMBAI AND BARODA CONSEQUENTIAL SEARCH WAS CARRI ED OUT IN THE BUSINESS AND RESIDENTIAL PREMISES OF DADHAS AT CHEN NAI AS WELL AS AT BANGALORE. THE ASSESSMENT ORDER WAS PASSED ON 3.7 .2008. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY AN ORDER DATED 16.9.2005. THOUGH THE ORDER OF THE CIT(A) WAS SERV ED ON THE ASSESSEE ON 9.11.2005, THE ASSESSEE PREFERRED APPE AL AFTER A DELAY OF 558 DAYS. THIS TRIBUNAL REJECTED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO SUFFICIENT CAUSE FOR THE D ELAY IN FILING THE APPEAL WITHIN THE STIPULATED TIME. THE ASSESSEE C ARRIED THE MATTER ITA NO. 615/15 :- 5 -: BEFORE THE HIGH COURT. THE HIGH COURT AFTER CONSID ERING THE RELEVANT FACTS ON RECORD, FOUND THAT THE ASSESSEE HAS NOT E XPLAINED THE CAUSE OF DELAY IN FILING THE APPEAL. THE ASSESSEE HAS N OT GIVEN ANY PARTICULARS REGARDING PREPARATION OF THE APPEAL AND HANDED OVER THE SAME FOR FILING BEFORE THIS TRIBUNAL. ACCORDINGLY , THE HIGH COURT CONFIRMED THE ORDER OF THIS TRIBUNAL. IN THE CASE BEFORE US, THE ASSESSEE TOOK EFFECTIVE STEPS FOR FILING THE APPEAL . IN FACT, THE FEES FOR FILING THE APPEAL WAS PAID ON 23.12.2013 I.E WITHIN THE PERIOD OF LIMITATION. THE ASSESSEE HAS FILED COPIES OF THE CHALLAN. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA (SUPRA ) MAY NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN VI EW OF THE ABOVE, THE DELAY OF 532 DAYS IN FILING THE APPEAL IS CONDONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED. 6. NOW COMING TO THE MERIT OF THE APPEAL, THE ONLY ISS UE ARISES FOR CONSIDERATION IS ADDITION OF ` 30 LAKHS BEING THE COST OF IMMOVABLE PROPERTY PURCHASED BY THE ASSESSEE. 7. SHRI T.BANUSEKAR, LD. REPRESENTATIVE FOR THE ASSES SEE SUBMITTED THAT THE ASSESSEE PURCHASED AN IMMOVABLE PROPERTY AND THE ASSESSEES SHARE IS ONLY 50%. THE ASSESSEE H AS PAID ONLY ` 15 LAKHS FOR PURCHASE OF THE LAND. HOWEVER, THE ASSESS ING OFFICER BY AN ITA NO. 615/15 :- 6 -: ORDER U/S 144 OF THE ACT MADE ADDITION OF ` 30 LAKHS. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDER ATION. 8. WE HEARD SHRI A.B KOLI, LD. DEPARTMENTAL REPRESENTA TIVE ALSO. 9. THE ASSESSING OFFICER RECEIVED DETAILS OF PURCHASE OF PROPERTY FROM SUB-REGISTRAR, TIRUPUR, ON 8.10.2007. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE HAS NOT FILED ANY MATERIAL TO SUBSTANTIATE THE SOURCE OF MAKING INVESTMENT OF ` 30 LAKHS. THE ASSESSEE CLAIMED BEFORE THE CIT(A) THAT THE ASSESS EE HAS INVESTED ONLY ` 15 LAKHS AND THE BALANCE AMOUNT OF ` 15 LAKHS WAS INVESTED BY ONE SHRI PALANISAMY. HOWEVER, SHRI PALANISAMY WAS NOT EXAMINED BY THE ASSESSING OFFICER AS THE ASSESSEE COULD NOT PRODUCE SHRI PALANISAMY BEFORE HIM. IN THE ABSENCE OF CONFIRM ATION FROM SHRI PALANISAMY, THE ASSESSING OFFICER MADE ADDITION OF ` 30 LAKHS. IT IS NOT KNOWN IN WHOSE NAMES THE DOCUMENT WAS REGISTERE D. WHETHER THE DOCUMENT WAS REGISTERED IN THE NAME OF THE ASS ESSEE AS WELL AS SHRI PALANISAMY AS A JOINT OWNER WAS NOT EXAMINED B Y THE ASSESSING OFFICER. IF THE DOCUMENT WAS REGISTERED IN THE NAM E OF THE ASSESSEE ALONE THEN THERE MAY BE JUSTIFICATION FOR MAKING TH E ADDITION IN THE HANDS OF THE ASSESSEE. HOWEVER, THE FACTUAL MATRI X NEEDS TO BE ITA NO. 615/15 :- 7 -: EXAMINED WHETHER SHRI PALANISAMY HAS CONTRIBUTED FO R PURCHASING THE IMMOVABLE PROPERTY AS CLAIMED BY THE ASSESSEE. TH IS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS FACT NEEDS TO BE R E-EXAMINED BY THE ASSESSING OFFICER. THEREFORE, THE ORDERS OF THE LO WER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE OF PURCHASE OF IMMOV ABLE PROPERTY IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AFRESH IN THE LI GHT OF THE MATERIAL AVAILABLE ON RECORD AND DECIDE THE SAME IN ACCORDAN CE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSEE TO PRODUCE ALL NECESSAR Y MATERIAL TO SUBSTANTIATE THE CLAIM BEFORE THE ASSESSING OFFICER . 10. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 18 TH MARCH, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF