A.Subramaniam, CHENNAI V. ITO Non Corporate Ward 2(4), CHENNAI

ITA 992/CHNY/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1577 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAHADEVAN
• Assessee Lawyers: F C JAIN

Judgement Text

, / , IN THE INCOME TAX APPELLATE TRIBUNAL B SMC BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER !./ ITA NO.992/CHNY/2018 # $%# / ASSESSMENT YEAR : 2011-12 SHRI A. SUBRAMANIAM, 38, APPU STREET, MYLAPORE, CHENNAI - 600 004. PAN : ABCPS 0130 N V. THE INCOME TAX OFFICER, NON CORPORATE WARD 2(4), CHENNAI - 600 034. ('(/ APPELLANT) ()*'(/ RESPONDENT) '( + , / APPELLANT BY : SHRI F.C. JAIN, CA )*'( + , / RESPONDENT BY : SHRI B. SAHADEVAN, JCIT - $ + ./ / DATE OF HEARING : 03.09.2018 01% + ./ / DATE OF PRONOUNCEMENT : 07.09.2018 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -2, CHENNA I, DATED 19.12.2017 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SHRI F.C. JAIN, THE LD. REPRESENTATIVE FOR THE A SSESSEE, SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSIN ESS OF PAWN BROKING. ACCORDING TO THE LD. REPRESENTATIVE, ON 1 0.04.2011, THE 2 I.T.A. NO.992/CHNY/18 FLYING SQUAD OF ELECTION COMMISSION INSPECTED THE P REMISES OF THE ASSESSEE AND FOUND CASH OF 2 LAKHS. THE INVESTIGATION WING OF INCOME-TAX DEPARTMENT ALSO MADE A SURVEY IN THE PRE MISES OF THE ASSESSEE. DURING THE COURSE OF SURVEY OPERATION, A CCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE ACCEPTED THAT HE W ILL OFFER THE AMOUNT OF 2 LAKHS FOR TAXATION. ACCORDING TO THE LD. REPRESENTATIVE, OTHER THAN THE STATEMENT RECORDED I N THE COURSE OF SURVEY OPERATION, NO OTHER MATERIAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE CASH OF 2 LAKHS FOUND BY THE FLYING SQUAD OF ELECTION COMMISSION, WAS EARNED BY THE ASSESSEE. PLACING RE LIANCE ON THE VARIOUS JUDGMENTS OF HIGH COURTS, THE LD. REPRESENT ATIVE SUBMITTED THAT THE REVENUE AUTHORITIES CANNOT MAKE ASSESSMENT ONLY ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE SURVE Y OPERATION. ACCORDING TO THE LD. REPRESENTATIVE, THE REVENUE AU THORITIES ARE NOT EMPOWERED TO RECORD A SWORN STATEMENT DURING THE CO URSE OF SURVEY OPERATION, THEREFORE, THE STATEMENT RECORDED BY THE REVENUE AUTHORITIES FROM THE ASSESSEE CANNOT HAVE ANY EVIDE NTIARY VALUE. 3. SHRI F.C. JAIN, THE LD. REPRESENTATIVE FOR THE A SSESSEE, FURTHER SUBMITTED THAT EVEN FOR ARGUMENT SAKE THAT THE INCOME HAS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE, IT CAN NOT BE ASSESSED DURING THE YEAR UNDER CONSIDERATION. ACCORDING TO THE LD. 3 I.T.A. NO.992/CHNY/18 REPRESENTATIVE, THE CASH WAS ADMITTEDLY FOUND IN TH E PREMISES OF THE ASSESSEE ON 10.04.2011 WHICH FALLS IN THE FINANCIAL YEAR 2011-12 AND ASSESSMENT YEAR 2012-13. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THERE CANNOT BE ANY ASSESSMENT DURI NG THE YEAR UNDER CONSIDERATION. 4. ON THE CONTRARY, SHRI B. SAGADEVAN, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT ADMITTEDLY A CASH OF 2 LAKHS WAS FOUND IN THE RESIDENTIAL PREMISES OF THE ASSESSEE. THE ASSESSEE ADMITTED THAT HE WILL OFFER THE SAME FOR TAXATION. ON A QUERY FROM THE BENCH, WHEN THE CASH WAS FOUND ON 10.04.2011 DU RING THE ASSESSMENT YEAR 2012-13, HOW CAN THERE BE ASSESSMEN T OF 2 LAKHS FOR THE ASSESSMENT YEAR 2011-12? THE LD. D.R . CLARIFIED THAT SINCE THE ASSESSEE ACCEPTED THE CASH AND AGREED TO OFFER THE SAME FOR TAXATION, THE SAME WAS TAXED. IF THE TRIBUNAL FEELS THAT IT HAS TO BE ASSESSED DURING THE ASSESSMENT YEAR 2012-13, THE LD. D.R. SUBMITTED THAT A DIRECTION MAY BE ISSUED TO THE DEP ARTMENT TO ASSESS THE SAME FOR THE ASSESSMENT YEAR 2012-13. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THE CASH WAS FOUND ON 10.04.2011 WHICH FALLS IN THE FIN ANCIAL YEAR 4 I.T.A. NO.992/CHNY/18 2011-12 AND ASSESSMENT YEAR 2012-13. THE ASSESSMEN T YEAR UNDER CONSIDERATION IS 2011-12. WHEN THE CASH WAS FOUND BY THE REVENUE AUTHORITIES, THE PRESUMPTION IS THAT THE AS SESSEE EARNED THE MONEY DURING THE FINANCIAL YEAR IN WHICH THE SA ME WAS FOUND. IN THE CASE BEFORE US, NO OTHER MATERIAL, EXCEPT TH E STATEMENT OF THE ASSESSEE, IS AVAILABLE ON RECORD TO SUGGEST THAT TH E ASSESSEE HAS EARNED ANY MONEY. IT IS A WELL SETTLED PRINCIPLE O F LAW THAT DURING THE COURSE OF SURVEY OPERATION, THE REVENUE AUTHORI TIES ARE NOT EMPOWERED TO ADMINISTER OATH TO THE DEPONENT. THER EFORE, ANY STATEMENT RECORDED WITHOUT ADMINISTERING STATEMENT CANNOT HAVE ANY EVIDENTIARY VALUE. SINCE THE CASH WAS FOUND ON 10.04.2011 AND ADMITTEDLY IT FALLS IN THE FINANCIAL YEAR 2011- 12 AND ASSESSMENT YEAR 2012-13, THIS TRIBUNAL IS OF THE CONSIDERED OP INION THAT THERE CANNOT BE ANY ASSESSMENT DURING THE YEAR UNDER CONS IDERATION. THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE OR DERS OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ADDITION OF 2 LAKHS MADE BY THE ASSESSING OFFICER AS CONFIRMED BY THE CIT(APPEALS) IS DELETED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 5 I.T.A. NO.992/CHNY/18 ORDER PRONOUNCED IN THE COURT ON 7 TH SEPTEMBER, 2018 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 3! /DATED, THE 7 TH SEPTEMBER, 2018 KRI. + ).45 65%. /COPY TO: 1. '( /APPELLANT 2. )*'( /RESPONDENT 3. - 7. () /CIT(A)-2, CHENNAI-34 4. PRINCIPAL CIT, CHENNAI-1, CHENNAI 5. 5$8 ). /DR 6. 9# : /GF.