DCIT, CHENNAI V. P.Sathyanarayanan, CHENNAI

ITA 952/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73593 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 06-01-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 10-05-2013
• Court: TRIBUNAL
• Department Lawyers: P B SEKARAN
• Assessee Lawyers: B S PU RSHOTHAM; N DEVNATHAN
• Section: 153A; 263; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER I.T.A. NO. 952/MDS/2013 ASSESSMENT YEAR : 2002-03 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(3), NO.181, NUNGAMBAKKAM HIGH ROAD, NUNGAMBAKKAM, CHENNAI 600 034. (APPELLANT) VS SHRI P. SATHYANARAYANAN, NO.4 & 5, PRAKASAM STREET, JANAKI NAGAR, VALASARAVAKKAM, CHENNAI 600 087 [PAN: ABGPS 8413 E] (RESPONDENT) REVENUE BY : SHRI P.B. SEKARAN, CIT ASSESSEE BY : SHRI B.S. PURSHOTHAM, CA & SHRI N. DEVNATHAN, ADVOCATE DATE OF HEARING : 06-01-2014 DATE OF PRONOUNCEMENT : 08-01-2014 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE APPEAL HAS BEEN FILED BY THE REVENUE IMPUGNING THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II , CHENNAI DATED 11-02-2013 RELEVANT TO THE ASSESSMENT YEAR (A Y) 2002-03. I.T.A. NO. 952/MDS/2013 2 2. THE ONLY ISSUE IN APPEAL IS ADDITION TOWARDS DIF FERENCE IN INCOME ARISING OUT OF BALANCE SHEET FOUND AT THE TI ME OF SEARCH AND BALANCE SHEET FILED ALONG WITH RETURN OF INCOME . THE FACTS IN BRIEF ARE THAT, A SEARCH U/S. 132 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) WAS CONDUCT ED IN THE CASE OF SHRI T.R.PACHAMUTHU, FATHER OF THE ASSESSEE. IN RE SPONSE TO NOTICE U/S. 153C, THE ASSESSEE FILED RETURN OF INCO ME ON 31-07- 2006 ADMITTING AN INCOME OF ` 14,89,050/-. ASSESSMENT U/S.143(3) WAS COMPLETED ON 29-12-2006 DETERMINING THE TOTAL I NCOME OF THE ASSESSEE AS ` 51,54,170/-. SUBSEQUENTLY, DIFFERENCE OF ` 46,99,261/- WAS NOTICED BETWEEN THE TOTAL OF BALANC E SHEET FOUND AT THE TIME OF SEARCH AND THE TOTAL OF BALANCE SHEE T AS PER THE RETURN OF INCOME FILED BY THE ASSESSEE. THE DIFFER ENCE WAS OMITTED TO BE BROUGHT TO TAX. THE CIT(CIRCLE-I)-CH ENNAI VIDE ORDER U/S. 263 DATED 25-03-2009, SET ASIDE THE ASSESSMENT AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ABOVE ISSUE AN D RE-DO THE ASSESSMENT. THE ASSESSING OFFICER VIDE ASSESSMENT ORDER DATED 31-12-2009 PASSED U/S.153C R.W.S.143 R.W.S.263 DETE RMINED THE TOTAL INCOME OF THE ASSESSEE AS ` 61,88,311/- AFTER MAKING ADDITION ON ACCOUNT OF : I.T.A. NO. 952/MDS/2013 3 I. AGRICULTURAL INCOME ` 25,000/- II. DIFFERENCE IN INCOME DECLARED IN ORIGINAL RETUR N AND RETURN FILED U/S.153C ` 46,99,261/-. AGGRIEVED AGAINST THE ASSESSMENT ORDER DATED 31-12 -2009, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APP EALS). THE CIT(APPEALS) FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS. 891, 893, 894 & 897/MDS/2008 FOR T HE AYS. 1999- 2000, 2001-02, 2002-03 & 2005-06 RESPECTIVELY DECID ED ON 21-09- 2011, DELETED THE ADDITION MADE BY THE ASSESSING OF FICER ON ACCOUNT OF DIFFERENCE IN INCOME. THE REVENUE HAS C OME IN APPEAL AGAINST THIS ORDER OF THE CIT(APPEALS). 3. AT THE OUTSET, SHRI B.S. PURSHOTHAM, CA & SHRI N. DEVNATHAN, ADVOCATE, APPEARING ON BEHALF OF THE ASS ESSEE SUBMITTED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN A SSESSEES OWN CASE IN ITA NOS. 891, 893, 894 & 897/MDS/2008 FOR T HE AYS. 1999- 2000, 2001-02, 2002-03 & 2005-06 RESPECTIVELY TITLE D ACIT VS. SHRI P.SATHYANARAYANAN. THE LD.ARS OF THE ASSESSEE PLACED ON RECORD THE COPY OF THE ORDER OF THE TRIBUNAL IN THE AFORESAID APPEALS. I.T.A. NO. 952/MDS/2013 4 4. SHRI P.B. SEKARAN, APPEARING ON BEHALF OF THE RE VENUE FAIRLY STATED THAT THE ISSUE IN APPEAL HAS ALREADY BEEN DE CIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE, BUT FURTHER ADD ED, THAT THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT AGAINST THE SAID ORDER OF THE TRIBUNAL A ND THE APPEAL IS STILL PENDING BEFORE THE HONBLE HIGH COURT FOR FIN AL ADJUDICATION. 5. BOTH SIDES HEARD. IT IS NOT IN DISPUTE THAT THE ISSUE IN HAND HAS ALREADY BEEN ADJUDICATED BY THE CO-ORDINATE BEN CH OF THE TRIBUNAL IN ITA NOS. 891, 893, 894 & 897/MDS/2008 F OR THE AYS. 1999-2000, 2001-02, 2002-03 & 2005-06 RESPECTIVELY. A COPY OF WHICH HAS BEEN PLACED ON RECORD. THE RELEVANT EXTR ACT OF THE ORDER OF THE TRIBUNAL IS RE-PRODUCED HEREIN BELOW: AFTER CONSIDERING THE SUBMISSIONS OF THE LEARN ED DR WE ARE IN FULL AGREEMENT WITH HIM THAT IN VIEW OF T HE PROVISIONS OF SECTION 132(4A) READ WITH SECTION 292C OF THE AC T, THE BALANCE SHEETS WHICH HAVE BEEN FOUND IN THE COURSE OF SEARCH BEING IN THE POSSESSION AND CONTROL OF THE A SSESSEE WHO WAS STAYING IN THE JOINT FAMILY, THE CONTENTS O F SUCH BALANCE SHEET ARE LIABLE TO BE ACCEPTED AS TRUE AND WE HOLD SO. HOWEVER, WE ARE UNABLE TO AGREE WITH THE LEARNE D DR THAT THE ASSESSING OFFICER HAS ANY AUTHORITY OR POWER TO CONDONE THE DELAY IN FILING THE RETURN .. IN THE PRESENT CASE THE ASSESSING OFFICER HAS COMPARED THE I.T.A. NO. 952/MDS/2013 5 BALANCE SHEET FOUND IN THE COURSE OF SEARCH WITH TH E BALANCE SHEET FILED ALONG WITH THE BELATED RETURN AND THE D IFFERENTIAL HAS BEEN BROUGHT TO TAX BY THE ASSESSING OFFICER. A S WE HAVE ALREADY HELD THAT THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO THE NOTICE U/S 153C READ WITH SECTION 153A OF TH E ACT IS AN INVALID RETURN AND THE SAME CANNOT BE RESCUED TO BE TREATED AS A VALID RETURN, THIS COMPARISON ITSELF WOULD FAI L. ACCEPTING THAT THE RETURN FILED CAN BE CONSIDERED AS INFORMAT ION, STILL AS THE INVESTMENTS SHOWN IN THE BALANCE SHEET SEIZED B EING HIGHER, NO ADDITION ON THIS COUNT CAN BE MADE BECAU SE THERE IS NO BALANCE SHEET WHICH IS FILED AND WHICH CAN BE CONSIDERED FOR MAKING THE ADDITION. TRUE, IF THE BA LANCE SHEET FOUND IN THE COURSE OF SEARCH DOES NOT BALANCE OR T ALLY, THEN THE DIFFERENTIAL IN THE SAID BALANCE SHEET WOULD VE RY MUCH BE AVAILABLE FOR MAKING AN ADDITION. IN THE CIRCUMSTAN CES, THE VERY FOUNDATION FOR THE COMPARISON BEING THE BALANC E SHEET FILED ALONG WITH RETURN NO MORE SURVIVES FOR THE PU RPOSE OF MAKING AN ADDITION .....IN THE CIRCUMSTANCES, THE ADDITIONS MADE REPRESENTING THE DIFFERENCE BETWEEN THE INVESTMENTS SHOWN IN THE BALANCE SHEET FOUND IN THE COURSE OF SEARCH AND THE BALANCE SHEETS FILED A LONG WITH THE RETURNS STAND DELETED. AS WE HAVE ALREADY HELD THAT THE RETURN FILED BY THE ASSESSEE BEYOND THE TIME PROVID ED BY THE ASSESSING OFFICER IN THE NOTICE U/S. 153C READ WITH SECTION 153A OF THE ACT IS AN INVALID RETURN, ALL THE ADDIT IONS MADE ON THE BASIS OF THE COMPARISON WITH SUCH INVALID RETUR N STAND DELETED. HOWEVER, WE MAY HASTEN TO ADD HERE THAT IN VIEW OF THE PROVISO TO SECTION 240 OF THE ACT, THE INCOME R ETURNED BY THE ASSESSEE FOR THESE ASSESSMENT YEARS SHALL STAND CONFIRMED. IN THE CIRCUMSTANCES, THE APPEALS FILED BY THE I.T.A. NO. 952/MDS/2013 6 REVENUE IN ITA NOS. 891, 893, 894 AND 897/MDS/2008 STAND PARTLY ALLOWED 6. WE FIND THAT FACTS IN THE PRESENT CASE AR E IDENTICAL TO THE ONE ALREADY ADJUDICATED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(AP PEALS) IN FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) ON THIS ISSUE. THE IMPUGNED ORDER IS CONFIRMED AND THE APPEAL OF THE R EVENUE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 08 TH JANUARY, 2014 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) (VIK AS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER DATED: 08 TH JANUARY, 2014 TNMM COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR