P.K.Muyeenuddin, Chengalput V. ITO, CHENNAI

ITA 632/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64261 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-08-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 28-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N DEVANATHAN
• Keywords: Corroborative evidences; Condonation of delay
• Section: 143(3); 6

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI. BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NOS. 631 & 632/MDS/2012 ASSESSMENT YEAR : 2004-05 SHRI P.K. MUYEENUDDIN, 11 & 12 SENGUNDRAM INDUSTRIAL ESTATE, CHENGALPET 603 204 [PAN:AEIPM4366P] VS. THE INCOME TAX OFFICER, COMPANY CIRCLE VI(3), CHENNAI. (APPELLANT) (RESPONDENT) S.P. NOS. 47 AND 48/MDS/2012 [IN I.T.A. NOS. 631 & 632/MDS/2012] ASSESSMENT YEAR : 2004-05 SHRI P.K. MUYEENUDDIN, 11 & 12 SENGUNDRAM INDUSTRIAL ESTATE, CHENGALPET 603 204 VS. THE INCOME TAX OFFICER, COMPANY CIRCLE VI(3), CHENNAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N. DEVANATHAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL.CIT DATE OF HEARING : 28.08.2012 DATE OF PRONOUNCEMENT : 13.09.2012 ORDER PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER THE ASSESSEE HAS FILED TWO STAY PETITIONS IN THE AP PEALS IN I.T.A. NOS. 631 AND 632/MDS/2012 FOR THE ASSESSMENT YEAR 2004-0 5 AND THESE STAY PETITIONS ARE ALSO POSTED FOR HEARING TODAY I.E. 28 .08.2012 ALONG WITH THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 2 APPEALS. SINCE THE APPEALS FILED BY THE ASSESSEE HA VE BEEN TAKEN UP FOR ADJUDICATION, THE STAY PETITIONS FILED BY THE ASSES SEE HAVE BECOME INFRUCTUOUS AND ARE ACCORDINGLY DISMISSED. 2. NOW COMING TO THE APPEALS, THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS) VI, CHENNAI DATED 17.02.2012 FOR THE ASSESSMENT YEA R 2004-05 ONE APPEAL AGAINST QUANTUM AND THE OTHER AGAINST PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. SHRI N. DEVANATHAN , ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI SHAJI P. JACOB, ADDL. CIT REPRESENTED ON BEHALF OF THE REVENUE. 3. THE MAIN ISSUE IN THE QUANTUM APPEAL OF THE ASS ESSEE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDI NG THAT THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE. 4. FACTS OF THE CASE ARE THAT THE ASSESSEE FILED R ETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON 21.12.2005 ADMITTING INC OME OF ` .10,55,086/- AND AGRICULTURAL INCOME OF ` .2,50,000/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 28.09.2006 AND T HE ASSESSMENT ORDER WAS SERVED ON THE ASSESSEE ON THE SAME DAY. THE ASS ESSEE FILED REVISION PETITION UNDER SECTION 264 BEFORE THE COMMISSIONER OF INCOME TAX ON 18.04.2007 ALONG WITH ALL SUPPORTING EVIDENCES ON T HE CLAIMS REQUESTING THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 3 COMMISSIONER OF INCOME TAX TO CONSIDER THE EVIDENCE S FILED AND REVISE THE ASSESSMENT ORDER. 5. THE COMMISSIONER OF INCOME TAX BY HIS ORDER DAT ED 14.10.2008 DISMISSED THE REVISION PETITION FILED BY THE ASSESS EE. THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL AGAINST THE DISMISSAL O RDER PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 264 OF THE ACT. ON ADVISE OF THE CHARTERED ACCOUNTANT, THE ASSESSEE CAME TO KNOW THA T AN APPEAL FILED AGAINST AN ORDER PASSED UNDER SECTION 264 BY THE CO MMISSIONER OF INCOME TAX IS NOT MAINTAINABLE BEFORE THIS TRIBUNAL, BUT A N APPEAL HAS TO BE FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AGA INST THE ADDITIONS/DISALLOWANCE MADE IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT. THEREFORE, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) ON 10.06.2009 WITH A DELAY OF 956 DAYS. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) DISMIS SED THE APPEAL OF THE ASSESSEE HOLDING IT AS NOT MAINTAINABLE. THE CO MMISSIONER OF INCOME TAX (APPEALS) HELD THAT SUB-CLAUSE (A) OF SECTION 2 64 CLEARLY SPECIFIES THAT IF THE ASSESSEE CHOOSES TO FILE AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE COMMISSIONER SHALL NOT REVISE TH E ASSESSMENT ON A PETITION FILED UNDER SECTION 264 OF THE ACT. THEREF ORE, ACCORDING TO THE COMMISSIONER OF INCOME TAX (APPEALS), SINCE THE ASS ESSEE HAS EXERCISED I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 4 OPTION TO FILE A PETITION UNDER SECTION 264 BEFORE THE ADMINISTRATIVE COMMISSIONER, THE ASSESSEE CANNOT FILE AN APPEAL NO W BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) SEEKING CONDON ATION OF DELAY IN FILING APPEAL AFTER ASCERTAINING THE OUTCOME OF THE PETITION UNDER SECTION 264. THEREFORE, THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL IN LIMINE AS NOT MAINTAINABLE. 7. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. D. LAKSHMINARAYANA PATHI [250 ITR 187], IN AN IDENTICAL FACTS AND CIRCUMSTANCES HELD THAT INVO KING REVISIONAL JURISDICTION UNDER SECTION 264 COULD NOT CONSTITUTE A BAR IN FIL ING AN APPEAL BEFORE THE APPELLATE ASSISTANT COMMISSIONER NOTWITHSTANDING HI S UNSUCCESSFUL EFFORT AT HAVING THE ORDER REVISED. THE COUNSEL FOR THE ASSES SEE SUBMITS THAT IN VIEW OF THE HONBLE JURISDICTIONAL HIGH COURTS DECISION , THE APPEAL FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IS VERY MU CH MAINTAINABLE AND THEREFORE SHOULD HAVE ENTERTAINED THE APPEAL FILED BY THE ASSESSEE. 8. THE COUNSEL FOR THE REVENUE, THE ADDL.CIT DR SUBMITS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL FILED BY THE ASSESSEE HOLDING IT AS NOT MAINTAINABLE WITHOUT CON DONING THE DELAY IN FILING THE APPEAL. THE COUNSEL FOR THE REVENUE SUBMITS THA T AN APPEAL, WHICH WAS HELD TO BE NOT MAINTAINABLE BY THE COMMISSIONER OF INCOME TAX (APPEALS) UNDER SUB-SECTION (3) TO SECTION 249, SUCH AN ORDER IS NOT AN APPEALABLE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 5 ORDER BEFORE THIS TRIBUNAL AS THE COMMISSIONER OF I NCOME TAX (APPEALS) DID NOT PASS SUCH ORDER UNDER SECTION 250. HE CONTENDS THAT ONLY SUCH ORDER WHICH IS PASSED UNDER SECTION 250 BY THE COMMISSION ER OF INCOME (APPEALS) IS AN APPEALABLE ORDER BEFORE THIS TRIBUN AL. THE COUNSEL FOR THE REVENUE SUBMITS THAT ORDER PASSED BY THE COMMISSION ER OF INCOME TAX (APPEALS) DISMISSING THE APPEAL IN LIMINE WITHOUT C ONDONING THE DELAY AND ADMITTING THE APPEAL UNDER SECTION 249(3) IS NOT AN ORDER PASSED UNDER SECTION 250 AND THEREFORE, NO APPEAL LIES BEFORE TH E TRIBUNAL ON SUCH ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS). FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF THE HONBLE KERALA HIG H COURT IN THE CASE OF V.K. SREENIVASAN V. DCIT [70 DTR (KER.) 341], WHEREIN TH EIR LORDSHIPS HELD THAT AN ORDER PASSED BY THE TRIBUNAL UNDER SECTION 253(5 ) DISMISSING AN APPEAL ON LIMITATION WITHOUT CONDONING THE DELAY IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND THEREFORE NOT AN APPEALABLE ORDE R BEFORE THE HIGH COURT UNDER SECTION 260A(1) OF THE ACT. 9. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND THE CASE LAW RELIED ON BY THE COUNSELS. THE COM MISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE AS NOT MAINTAINABLE ON THE GROUND THAT THE ASSESSEE HAD ALREADY APPROACHED THE COMMISSIONER OF INCOME TAX BY WAY OF A REVISION PETITION UNDER SECT ION 264 AND THEREFORE SINCE THE ASSESSEE HAD APPROACHED THE COMMISSIONER OF INCOME TAX UNDER I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 6 SECTION 264, AN APPEAL WILL NOT LIE BEFORE THE COMM ISSIONER OF INCOME TAX (APPEALS). THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. D. LAKSHMINARAYANAPATHI (SUPRA) HELD THAT THE TRIBUNAL HAS RIGHTLY HELD THAT THE ASSESSEE NOTWITHSTANDING HIS UNSUCCESSFUL EFFORT AT HAVING THE ORDER REVISED COULD STILL FILE AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). INVOKING THE REVISIONAL JURISDICTION COULD NOT CONS TITUTE A BAR IN FILLING AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) AND IT IS FOR THE LEGISLATURE TO IMPOSE SUCH A BAR IF IT CONSIDER NEC ESSARY TO DO SO. RESPECTFULLY FOLLOWING THE HONBLE JURISDICTIONAL H IGH COURTS DECISION, WE HOLD THAT THE APPEAL FILED BY THE ASSESSEE IS MAINT AINABLE THOUGH THE ASSESSEE CHOSE TO FILE REVISION PETITION BEFORE THE COMMISSIONER OF INCOME TAX UNDER SECTION 264 AND COULD NOT SUCCEED BEFORE HIM. 10. COMING TO THE CONTENTIONS OF THE COUNSEL FOR T HE REVENUE THAT AN APPEAL DISMISSED IN LIMINE BY THE COMMISSIONER OF I NCOME TAX (APPEALS) UNDER SECTION 249(3) WITHOUT CONDONING THE DELAY AN D ADMITTING THE APPEAL IS NOT AN ORDER PASSED UNDER SECTION 250 AND THEREF ORE NOT APPEALABLE BEFORE THIS TRIBUNAL, WE ARE NOT INCLINED TO ACCEPT THIS CONTENTION. THE HONBLE SUPREME COURT IN THE CASE OF MELA RAM & SON S V. CIT [29 ITR 607], THE APEX COURT HELD THAT AN ORDER PASSED BY A PPELLATE ASSISTANT COMMISSIONER HOLDING THAT THERE WAS NO SUFFICIENT R EASON FOR EXCUSING THE DELAY UNDER SECTION 30(2) OF INCOME TAX ACT 1922 [C ORRESPONDING TO SECTION I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 7 249(3) OF INCOME TAX ACT 1961] AND REJECTING THE AP PEAL AS TIME BARRED IS AN ORDER PASSED UNDER SECTION 31 OF INCOME TAX ACT 1922 [CORRESPONDING TO SECTION 250 OF INCOME TAX ACT, 1961] AND THEREFORE AN APPEAL LIES THROUGH THAT ORDER TO THE APPELLATE TRIBUNAL. THE HONBLE A PEX COURT FURTHER HELD THAT IT MAKES NO DIFFERENCE WHETHER THE ORDER OF DISMISS AL IS MADE BEFORE OR AFTER THE APPEAL IS ADMITTED. THIS DECISION OF THE HONBL E APEX COURT IS NOT CONSIDERED BY THE HONBLE KERALA HIGH COURT IN THE CASE OF V.K. SREENIVASAN (SUPRA) WHILE DELIVERING THE JUDGMENT. FOR THAT MATTER NONE OF THE DECISIONS ON THE ISSUE WERE CONSIDERED BY THE H ONBLE HIGH COURT OF KERALA IN COMING TO THE CONCLUSION THAT AN ORDER PA SSED BY THE TRIBUNAL WITHOUT CONDONING THE DELAY IN FILING AN APPEAL IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND THEREFORE NO APPEAL LIES BEFORE THE HIGH COURT UNDER SECTION 260A(1) OF THE ACT. IN THE CASE OF STATE OF TAMIL NADU & ORS. V. P.M. MADHAVAN NAIR & ORS [49 STC 244] AND THE STATE OF TAMIL NADU V. SINGHI TRADERS [57 STC 209], THE HONBLE MADRAS HIGH COURT HELD THAT AN APPEAL LIES TO THE TRIBUNAL AGAINST THE FIRST APPELLATE AU THORITYS ORDER REJECTING THE CONDONATION OF DELAY IN FILING THE FIRST APPEAL. IN THE CIRCUMSTANCES, WE HOLD THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THIS T RIBUNAL IS MAINTAINABLE. 11. IN VIEW OF THE ABOVE, WE RESTORE THIS APPEAL T O THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR DISPOSAL I N ACCORDANCE WITH LAW AFTER CONDONING THE DELAY. SINCE THE APPEAL IN QUAN TUM PROCEEDINGS IS I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.631 & 632 631 & 632 631 & 632 631 & 632/M/ /M/ /M/ /M/12 1212 12 8 RESTORED TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS), WE ALSO RESTORE THE APPEAL FILED AGAINST LEVY OF PENALTY UN DER SECTION 271(1)(C) OF THE ACT SINCE THE OUTCOME OF THE APPEAL IN QUANTUM PROC EEDINGS WILL HAVE A BEARING ON THE PENALTY APPEAL. 12. IN THE RESULT, BOTH THE STAY PETITIONS OF THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS AND BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THURSDAY, THE 13 TH OF SEPTEMBER, 2012 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER CHENNAI, DATED, THE 13.09.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.