D.Periasamy, Sivakasi V. ITO, Virudhunagar

ITA 956/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5678 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 19-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: S CHANDRASEKARAN
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , !, # !$ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.956/MDS/2017 ' (' / ASSESSMENT YEAR : 2010-11 SHRI D. PERIASAMY, 105 D, KAMARAJAR ROAD, SIVAKASI. PAN : AAUPP 8899 G V. THE PRINCIPAL COMMISSIONER OF INCOME-TAX, MADURAI 2. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI S. CHANDRASEKARAN, FCA ,-*+ . / / RESPONDENT BY : MS. S. VIJAYAPRABHA, JCIT 0 . 1# / DATE OF HEARING : 08.11.2017 23( . 1# / DATE OF PRONOUNCEMENT : 30.11.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, MADURAI, DATED 28.03.2017 AND PERTAINS TO ASSESSMENT YEAR 2010-11. 2. SHRI S. CHANDRASEKARAN, THE LD. REPRESENTATIVE F OR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS PURCHASED A LAND FROM CO-OPERATIVE INDUSTRIAL ESTATE, SIVAKASI IN FAVOUR OF PARTNERSHIP FIRM 2 I.T.A. NO.956/MDS/17 M/S GRAPHIC TECHNIC PRINTS. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE IS ONE OF THE PARTNERS IN M/S GRAPHIC TECHNIC PRINTS. THE PROPERTY WAS AGAIN SOLD TO SHR I P. DHARMAR, FATHER OF THE ASSESSEE ON 24.07.2009 FOR A SALE CON SIDERATION OF ` 9,00,000/-. HOWEVER, THE GUIDELINE VALUE STOOD AT ` 14,00,000/-. ACCORDING TO THE LD. REPRESENTATIVE, THE TRANSACTIO N BETWEEN M/S GRAPHIC TECHNIC PRINTS AND THE ASSESSEES FATHER IS ONLY A FAMILY ARRANGEMENT, THEREFORE, IT IS NOT A SALE OF PROPERT Y. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSING OFFICER, AFTER CO NSIDERING THE ENTIRE ISSUE, FOUND THAT NO CAPITAL GAIN WAS TAXABL E IN RESPECT OF THE TRANSACTION OF THIS PROPERTY. HOWEVER, ACCORDING T O THE LD. REPRESENTATIVE, THE ADMINISTRATIVE COMMISSIONER IN THE GUISE OF EXERCISING HIS JURISDICTION UNDER SECTION263 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), FOUND THAT THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY, THEREFORE, THE ORDER OF THE ASSES SING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVEN UE. 3. THE LD. REPRESENTATIVE FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSING OFFICER MADE THOROUGH INVESTIGAT ION AND THEN ALLOWED THE CLAIM OF THE ASSESSEE. ACCORDING TO TH E LD. COUNSEL, MERELY BECAUSE THE ASSESSING OFFICER HAS NOT RECORD ED HIS 3 I.T.A. NO.956/MDS/17 OBSERVATION IN THE IMPUGNED ORDER IN SO MANY WORDS, IT DOES NOT MEAN THAT THE ASSESSING OFFICER HAS NOT CONSIDERED THE SAME IN THE ASSESSMENT ORDER. ACCORDING TO THE LD. REPRESENTAT IVE, DRAFTING OF ASSESSMENT ORDER IS DISCRETION OF THE ASSESSING OFF ICER AND THE ASSESSEE HAS NO ROLE TO PLAY IN DRAFTING THE ASSESS MENT ORDER. MERELY BECAUSE THE ASSESSING OFFICER COMMITTED MIST AKE IN MAKING REFERENCE ABOUT THE ENQUIRY IN THE ASSESSMENT ORDER , ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE CANNOT BE MADE TO SUFFER, THEREFORE, THE PRINCIPAL COMMISSIONER IS NOT JUSTIF IED IN INTERFERING WITH THE ORDER OF THE ASSESSING OFFICER. 4. WE HEARD MS. S. VIJAYAPRABHA, THE LD. DEPARTMENT AL REPRESENTATIVE ALSO. WE HAVE CAREFULLY GONE THROUG H THE IMPUGNED ORDER OF ASSESSMENT. THE ASSESSING OFFICER ACCEPTE D THE RETURNED INCOME WITHOUT ANY DISCUSSION IN THE ASSESSMENT ORD ER. THE ASSESSMENT PROCEEDING BEFORE THE ASSESSING OFFICER IS A JUDICIAL PROCEEDING. THEREFORE, THE ASSESSING OFFICER IS EX PECTED TO APPLY HIS MIND TO THE MATERIAL AVAILABLE ON RECORD. THE APPLICATION OF MIND TO THE MATERIAL AVAILABLE ON RECORD SHALL BE R EFLECTED IN THE ASSESSMENT ORDER ITSELF. THE REASON FOR CONCLUSION ARRIVED IN THE ASSESSMENT PROCEEDING SHALL BE REFLECTED IN THE ASS ESSMENT ORDER 4 I.T.A. NO.956/MDS/17 ITSELF. REASONS FOR CONCLUSION REACHED IN THE ASSE SSMENT PROCEEDING CANNOT BE SUBSTITUTED BY WAY OF AFFIDAVI T OR OTHER MATERIAL IN THE APPELLATE / REVISIONAL PROCEEDING. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE PROCEEDING BEFORE T HE ASSESSING OFFICER BEING A JUDICIAL PROCEEDING, THE ASSESSING OFFICER IS BOUND TO PASS A SPEAKING ORDER BRINGING ALL THE FACTS ON RECORD. THE REASON FOR CONCLUSION REACHED IN THE ASSESSMENT ORD ER IS THE LIVE LINK TO THE MATERIAL AVAILABLE ON RECORD AND MIND O F THE DECISION MAKER. A SPEAKING ORDER WOULD AVOID ARBITRARINESS. 5. NO DOUBT, THE ASSESSEE HAS NO ROLE TO PLAY IN DR AFTING OF ASSESSMENT ORDER. IT IS IN THE EXCLUSIVE DOMAIN OF THE ASSESSING OFFICER TO DRAFT THE ASSESSMENT ORDER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND ENQUIRY CONDUCTED BY HIM. HOWEVER, WE CANNOT FORGET THE FACT THAT THE ASSESSMENT ORDER IS SUBJECTED TO SCRUTINY IN THE APPELLATE PROCEEDING AND REVISIONAL PROCEEDING. THE ORDER OF THE ASSESSING OFFICER IS ALSO SUBJECTED TO FURTHER APPEAL BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT. THEREFORE, UNLESS THE ASSESSING OFFICER RECORDS HIS REASON FOR CONCLUSION REACHED IN THE ASSESSMENT, THE APPELLATE / REVISION AL AUTHORITIES MAY NOT BE ABLE TO APPRECIATE THE ORDER OF THE ASSE SSING OFFICER IN PROPER MANNER. THEREFORE, JUDICIAL DISCIPLINE REQU IRES THE ASSESSING 5 I.T.A. NO.956/MDS/17 OFFICER TO RECORD THE REASON FOR THE CONCLUSION REA CHED IN THE ASSESSMENT ORDER. EVEN THOUGH THE ASSESSEE HAS NO ROLE TO PLAY IN DRAFTING OF THE ASSESSMENT ORDER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IT IS FOR THE ASSESSING OFFICER WHO, B EING A QUASI-JUDICIAL AUTHORITY, HAS TO APPLY HIS MIND TO THE MATERIAL AV AILABLE ON RECORD AND ENQUIRY CONDUCTED AND RECORD HIS REASONS FOR CO NCLUSION REACHED IN THE ASSESSMENT ORDER. SINCE SUCH AN EXE RCISE WAS NOT DONE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION TH AT THE PRINCIPAL COMMISSIONER HAS RIGHTLY EXERCISED HIS JURISDICTION UNDER SECTION 263 OF THE ACT. THE ASSESSING OFFICER SHALL INDEPE NDENTLY EXAMINE THE CLAIM OF THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATION MADE BY THE PRINCIPAL COMMISSIONER IN T HE IMPUGNED ORDER, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2017 AT CHENNAI. SD/- SD/- ( ! ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 30 TH NOVEMBER, 2017. KRI. 6 I.T.A. NO.956/MDS/17 . ,167 87(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. PRINCIPAL CIT, MADURAI- 2, MADURAI 5. 79 ,1 /DR 6. ' : /GF.