S.Shanthi, Salem V. ITO, Salem

ITA 833/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96065 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: G BASKAR
• Section: 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ./ ITA NO.833/MDS/2015 ' #$' / ASSESSMENT YEAR : 2003-04 SMT. SANTHI, W/O G. SELVARAJAN, NO.3, 5 TH WARD, THARAMANGALAM, SALEM 636 502. PAN : AHXPS 4343 L V. THE INCOME TAX OFFICER, WARD II(2), 3, GANDHI ROAD, SALEM 636 007. (&'/ APPELLANT) (()&'/ RESPONDENT) &' * + / APPELLANT BY : SHRI G. BASKAR, ADVOCATE ()&' * + / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT , # * -. / DATE OF HEARING : 21.08.2015 /0$ * -. / DATE OF PRONOUNCEMENT : 04.09.2015 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM, DA TED 29.01.2015 AND PERTAINS TO ASSESSMENT YEAR 2003-04. 2. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER COMPUTED THE CAPITAL GAI N AFTER REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). ON APPEAL BEFORE THE CIT(APPEALS ), THE 2 I.T.A. NO.833/MDS/15 CIT(APPEALS) CONFIRMED THE ADDITION ON THE GROUND T HAT THE ASSESSEE DID NOT APPEAR BEFORE HIM. ACCORDING TO T HE LD. COUNSEL, THE ASSESSING OFFICER MADE ADDITION TO THE INCOME O F THE ASSESSEE ON THE BASIS OF STATEMENT SAID TO BE RECORDED FROM HER HUSBAND. THE ASSESSEE WAS NOT EVEN EXAMINED AND NO OPPORTUNI TY WAS GIVEN TO THE ASSESSEE. ACCORDING TO THE LD. COUNSE L, THE CIT(APPEALS) HAS NOT RE-APPRECIATED THE MATERIAL AV AILABLE ON RECORD. THEREFORE, THE IMPUGNED ORDER OF THE CIT(A PPEALS) CANNOT STAND IN THE EYE OF LAW. 3. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE HAD NOT FILED ANY MATERIAL BEFORE THE ASSESSING OFFICER WITH REGARD T O COMPUTATION OF CAPITAL GAIN OF ` 11,11,000/-. THEREFORE, ON THE BASIS OF THE MATERI AL AVAILABLE ON RECORD, THE ASSESSING OFFICER COMPUTED THE CAPITAL GAIN AT ` 11,11,000/-. HOWEVER, INSPITE OF THE OPPORTUNITY G IVEN TO THE ASSESSEE, NO ONE APPEARED BEFORE THE COMMISSIONER. THEREFORE, THE COMMISSIONER HAD NO OTHER ALTERNATIVE EXCEPT TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER. HENCE, NO INTERFERENCE IS CALLED FOR. 3 I.T.A. NO.833/MDS/15 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSES SING OFFICER COMPUTED THE CAPITAL GAIN AT ` 11,11,000/-. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) FOUND THAT THERE WAS A D ELAY IN FILING THE APPEAL BEFORE HIM. THE CIT(APPEALS) CONDONED T HE DELAY ON THE BASIS OF THE MATERIAL PRODUCED BEFORE HIM. THE CIT(APPEALS) HAS ALSO REFERRED TO THE CLAIM OF THE ASSESSEE THAT STATEMENT WAS NOT RECORDED FROM HER AND THE ASSESSING OFFICER PLA CED HIS RELIANCE ON THE STATEMENT RECORDED FROM THE ASSESSEES HUSBA ND. THEREAFTER, CONFIRMED THE ADDITION MADE BY THE ASSE SSING OFFICER ON THE GROUND THAT THE ASSESSEE DID NOT APPEAR BEFO RE HIM. 5. THE POWER OF CIT(APPEALS) IS COTERMINOUS WITH TH AT OF THE ASSESSING OFFICER. IN OTHER WORDS, THE CIT(APPEALS ) HAS POWER TO INCREASE THE ASSESSMENT BY CONSIDERING THE SOURCE O F INCOME WHICH WAS NOT CONSIDERED BY THE ASSESSING OFFICER. THE C IT(APPEALS), BEING A STATUTORY APPELLATE AUTHORITY UNDER THE PRO VISIONS OF INCOME- TAX ACT, HAS TO EXAMINE THE MATERIAL AVAILABLE ON R ECORD AND FIND OUT WHETHER THE ASSESSING OFFICER CONSIDERED ALL THE SO URCES OF INCOME OF THE ASSESSEE. IF THE CIT(APPEALS) COMES TO A CO NCLUSION THAT ANY PARTICULAR SOURCE OF INCOME WAS NOT CONSIDERED OR THE INCOME WAS NOT BROUGHT TO TAXATION FULLY, HE CAN INCREASE THE ASSESSMENT 4 I.T.A. NO.833/MDS/15 BY ISSUING SHOW CAUSE NOTICE TO THE ASSESSEE. THER EFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT MERELY B ECAUSE THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(APPEALS), THAT CANNOT BE A REASON TO DISMISS THE APPEAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IRRESPECTIVE OF THE APPEARANCE OF THE ASSESSEE BEFORE THE CIT(APPEALS), HE HAS TO EXERCISE HIS STATUTORY POWER AND RE- APPRECIATE THE MATERIAL AVAILABLE ON RECORD AND THE REAFTER DECIDE THE ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS BEF ORE HIM, ON MERIT. IN OTHER WORDS, THE CIT(APPEALS), BEING THE SENIOR-MOST OFFICER OF THE DEPARTMENT, HAS TO CALL FOR THE RECO RDS FROM ASSESSING OFFICER AND DECIDE THE ISSUE ARISES FOR CONSIDERATI ON, ON MERIT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE APPEA RED BEFORE HIM OR NOT. IN THIS CASE BEFORE US, THE CIT(APPEALS) W ITHOUT RE- APPRECIATING THE MATERIAL AVAILABLE ON RECORD, REJE CTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE CONCUR RED WITH THE STATEMENT RECORDED FROM HER HUSBAND. THE OTHER MAT ERIAL AVAILABLE ON RECORD WAS NOT EVEN REFERRED AND CONSIDERED. FR OM THE MATERIAL AVAILABLE ON RECORD, IT APPEARS THAT THE ASSESSEES HUSBAND WAS NOT WELL DURING THE EXAMINATION AND HE RETRACTED HIS ST ATEMENT BY LETTER DATED 17.09.2007. THIS LETTER WAS NOT CONSIDERED E ITHER BY THE ASSESSING OFFICER OR BY THE CIT(APPEALS). THEREFOR E, THIS TRIBUNAL 5 I.T.A. NO.833/MDS/15 IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE CONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE ON CAPITAL GAIN IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASS ESSING OFFICER SHALL RE-EXAMINE THE ISSUE IN THE LIGHT OF THE MATE RIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ISSUE IN ACCORDANC E WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 4 TH SEPTEMBER, 2015 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 2 /DATED, THE 4 TH SEPTEMBER, 2015. KRI. * (-34 54$- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 6- () /CIT(A), SALEM 4. , 6- /CIT, SALEM 5. 4#7 (- /DR 6. 8' 9 /GF.