Ku. Pa. Krishnan, Trichy V. ACIT, CHENNAI

ITSSA 12/CHNY/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0802 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-06-2015
• Assessment Year: misc
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G BASKAR SH A SATYASEELAN
• Keywords: Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER I.T.(SS) A. NO.12/MDS/2013 BLOCK PERIOD : 1986-87 TO 1996-97 UPTO 17.07.199 6 SHRI KU.PA. KRISHNAN, TAMILPANNAI HOUSE, MAIN ROAD, KULUMANI, TRICHY. PAN : ADJPK 2197 A V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(3), CHENNAI - 600 034. (()/ APPELLANT) (+,()/ RESPONDENT) () - . / APPELLANT BY : SH. G. BASKAR, ADVOCATE SH. A. SATYASEELAN, ADVOCATE +,() - . / RESPONDENT BY : SH. K. RAMASAMY, SR. SPECIAL PUBLIC PROSECUTOR / - 0% / DATE OF HEARING : 10.06.2015 1'2 - 0% / DATE OF PRONOUNCEMENT : 19.06.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE ASSESSING OFFICER DATED 28.03.2013 AND PERTAINS TO BLOCK PERIOD 1986-87 TO 1996-97 UPTO 17.07.1996. 2 I.T.(SS) A. NO.12/MDS/13 2. SHRI G. BASKAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A SEARCH ON 17.07.1996 AND THE ASSES SMENT ORDER WAS FRAMED ON 31.07.1997. THE ASSESSEE FILED AN AP PEAL BEFORE THIS TRIBUNAL AND THIS TRIBUNAL BY AN ORDER DATED 1 4.10.2003 IN I.T.(SS) A. NO.193/MDS/97 HAD DETERMINED THE TAXABL E INCOME AT ` 68,98,721/- INSTEAD OF ` 5,40,07,340/- DETERMINED BY THE ASSESSING OFFICER. BOTH, THE ASSESSEE AND THE DEPARTMENT FIL ED APPEALS BEFORE THE HIGH COURT IN TAX CASE (APPEAL) NOS.686 OF 2005 AND 2 OF 2009. REFERRING TO THE JUDGMENT OF THE HIGH COU RT, THE LD.COUNSEL SUBMITTED THAT THE HIGH COURT FOUND THAT THE TRIBUNAL OUGHT NOT HAVE GONE INTO THE ADDITIONAL EVIDENCE, R ATHER SHOULD HAVE REMITTED THE MATTER BACK TO THE FILE OF THE AS SESSING OFFICER. IN FACT, ACCORDING TO THE LD. COUNSEL, THE TRIBUNAL RE DUCED THE ASSESSED INCOME AT ` 65,52,405/- BY PLACING RELIANCE ON THE ADDITIONAL MATERIAL FILED BEFORE THIS TRIBUNAL. TH E LD.COUNSEL FURTHER SUBMITTED THAT THE HIGH COURT, IN FACT, SET ASIDE T HE ORDER OF THE TRIBUNAL AND REMITTED THE MATTER BACK TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND PASS A FRESH ORDER. 3. CONSEQUENT TO THE DIRECTION OF THE HIGH COURT RE MITTING BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER, TH E ASSESSING OFFICER 3 I.T.(SS) A. NO.12/MDS/13 PASSED AN ORDER WITHOUT CONSIDERING ANY OF THE ADDI TIONAL EVIDENCE FILED BY THE ASSESSEE. REFERRING TO PROVISIONS OF SECTION 158BB OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), THE LD.COUNSEL SUBMITTED THAT THE ASSESSING OFFICER HAS TO COMPUTE THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD ONLY ON THE BASIS OF THE MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIO N AND THE INFORMATION AVAILABLE ON RECORD, WHICH ARE RELATABL E TO THE MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATION. IN T HIS CASE, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER TRAVELLED BEYOND THE MATERIAL FOUND DURING THE COURSE OF SEARCH OPER ATION. THE LD.COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAD PRODUCED SEVERAL DOCUMENTARY EVIDENCE TO SHOW THE RECEIPT OF INCOME FROM AGRICULTURE AND OTHER SOURCES. THE ASSESSING OFFIC ER FAILED TO CONSIDER THE SAME EVEN AFTER THE DIRECTION OF THE H IGH COURT. SINCE THE ASSESSING OFFICER HAD NOT CONSIDERED THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE INSPITE OF THE DIRECTION OF T HE HIGH COURT, ACCORDING TO THE LD. COUNSEL, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. 4. THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTE D THAT THE REVENUE SEIZED SEVERAL GOLD JEWELLERY, DIAMOND, SIL VER ARTICLES FROM THE PREMISES OF THE ASSESSEE DURING THE COURSE OF SEARCH 4 I.T.(SS) A. NO.12/MDS/13 OPERATION. ACCORDING TO THE LD. COUNSEL, THE ASSES SEES WIFE COULD NOT WEAR THE JEWELS DURING THE MARRIAGE OCCASION OF HER DAUGHTER. EVEN THOUGH THE SEARCH TOOK PLACE ON 17.07.1996, TH E PROCEEDINGS COULD NOT BE COMPLETED EVEN NOW AND THE DEPARTMENT IS NOT PREPARED TO RELEASE THE JEWELS SEIZED FROM THE ASSE SSEE. THE LD.COUNSEL FURTHER SUBMITTED THAT A DIRECTION MAY B E ISSUED TO THE DEPARTMENT TO RETURN THE JEWELS SEIZED FROM THE PRE MISES OF THE ASSESSEE. 5. ON THE CONTRARY, SHRI K. RAMASAMY, THE LD. SR. S PECIAL PUBLIC PROSECUTOR FOR THE DEPARTMENT, SUBMITTED THA T IN FACT, THE ASSESSEE HAD FILED SEVERAL ADDITIONAL MATERIAL BEFO RE THIS TRIBUNAL IN THE FIRST ROUND OF LITIGATION. THIS TRIBUNAL MAINL Y PLACING RELIANCE ON THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE, REDU CED SEVERAL ADDITIONS MADE BY THE ASSESSING OFFICER AND DETERMI NED THE INCOME AT ` 68,98,721/- INSTEAD OF ` 5,40,07,340/- DETERMINED BY THE ASSESSING OFFICER. REFERRING TO THE JUDGMENT OF TH E HIGH COURT, THE LD. SR. SPECIAL PUBLIC PROSECUTOR SUBMITTED THAT TH E HIGH COURT REMITTED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND PASS A FRESH ORDER. INSPITE OF THE SPECIFIC DI RECTION OF THE HIGH COURT, THE ASSESSING OFFICER DID NOT CONSIDER THE A DDITIONAL 5 I.T.(SS) A. NO.12/MDS/13 EVIDENCE. THEREFORE, THE LD. SR. SPECIAL PUBLIC PR OSECUTOR SUBMITTED THAT THE MATTER MAY BE ONCE AGAIN REMITTE D BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ADDIT IONAL EVIDENCE FILED BY THE ASSESSEE AS DIRECTED BY THE HIGH COURT AND P ASS AN ORDER IN ACCORDANCE WITH LAW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE FI RST ROUND OF LITIGATION, THIS TRIBUNAL DELETED MAJORITY OF THE A DDITIONS MADE BY THE ASSESSING OFFICER AND DETERMINED THE TAXABLE INCOME TO ` 65,52,405/-. THE HIGH COURT IN ITS JUDGMENT DATED 27.03.2012, AT PAGES 10, 11 & 12 EXTRACTED THE ADDITION MADE BY TH E ASSESSING OFFICER AND THE DELETION MADE BY THE TRIBUNAL. THE HIGH COURT CAME TO A CONCLUSION THAT THE TRIBUNAL SOLELY PLACE D RELIANCE ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE TH E TRIBUNAL REDUCING THE INCOME TO ` 65,52,405/-. ULTIMATELY, THE HIGH COURT CAME TO A CONCLUSION THAT THE TRIBUNAL OUGHT NOT TO HAVE GONE INTO THE ADDITIONAL EVIDENCE AND RATHER SHOULD HAVE REMI TTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, THE HIGH COURT SET ASIDE THE ORDER OF THE TRIBUNAL AND REMITTED THE MA TTER BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE DOCUM ENTS FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE BEFORE THIS TRIBUNA L AND PASS A 6 I.T.(SS) A. NO.12/MDS/13 FRESH ORDER. IN FACT, THE HIGH COURT HAS OBSERVED AS FOLLOWS AT PARAS 17 AND 18 OF ITS JUDGMENT:- 17. BY PLACING RELIANCE SOLELY ON THE DOCUMENTS FILE D AS ADDITIONAL EVIDENCE, THE TRIBUNAL HAD CONFIRMED THE ASSESSMENT ORDER TO THE TUNE OF ` 65,52,405/- AND INTERFERED WITH THE ORDER OF THE ASSESSING OFFICER BY DELETING THE REST OF THE ASSESSMENT. FOR THE SAID REASON ALSO, WE ARE INCLINED TO HOLD THAT THE TRIBUNAL OUG HT NOT TO HAVE GONE INTO THE ADDITIONAL EVIDENCE AND RATHE R SHOULD HAVE REMITTED THE MATTER TO THE ASSESSING OF FICER. 18. FOR ALL THESE REASONS, WE ARE CONSTRAINED TO SE T ASIDE THE ORDER OF THE TRIBUNAL AND REMIT THE MATTE R TO THE ASSESSING OFFICER, WHO SHALL NOW CONSIDER THE DOCUMENTS FILED AS ADDITIONAL EVIDENCE BY THE ASSES SEE AND PASS FRESH ORDERS. ACCORDINGLY, THE ORDER OF T HE TRIBUNAL IS SET ASIDE, THE TAX CASE APPEALS ARE ALLO WED AND THE SUBSTANTIAL QUESTIONS OF LAW ARE ANSWERED ACCOR DINGLY. CONNECTED M.P. IS CLOSED. IN VIEW OF THE JUDGMENT OF THE HIGH COURT SETTING A SIDE THE ORDER OF THE TRIBUNAL AND REMITTING BACK THE MATTER TO THE F ILE OF THE ASSESSING OFFICER, IT IS A BOUNDEN DUTY OF THE ASSE SSING OFFICER TO CONSIDER ALL THE ADDITIONAL EVIDENCE FILED BY THE A SSESSEE AND THEREAFTER DECIDE THE MATTER IN ACCORDANCE WITH LAW . UNFORTUNATELY, INSPITE OF DIRECTION OF THE HIGH COURT, THE ASSESSI NG OFFICER HAS NOT REFERRED ANY OF THE ADDITIONAL EVIDENCE FILED BY TH E ASSESSEE IN THE IMPUGNED ASSESSMENT ORDER. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE AND THE LD. SR. SPECIAL PUBLIC PROSECUTOR FOR THE DEPARTMENT, THE ASSESSING OFFICE R HAS NOT 7 I.T.(SS) A. NO.12/MDS/13 CONSIDERED THE ADDITIONAL EVIDENCE FILED BY THE ASS ESSEE. THEREFORE, THERE IS A CLEAR VIOLATION OF THE DIRECT ION ISSUED BY THE HIGH COURT. THIS TRIBUNAL IS OF THE CONSIDERED OPI NION THAT WHEN THE HIGH COURT DIRECTED THE ASSESSING OFFICER TO CONSID ER THE ADDITIONAL EVIDENCE, THE ASSESSING OFFICER HAS NO OTHER OPTION EXCEPT TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSES SEE AND DISCUSS THE SAME IN THE ASSESSMENT ORDER BY MAKING A REFERE NCE IN RESPECT OF EACH AND EVERY ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND THEREAFTER THE ASSESSING OFFICER HAS TO PASS A SPEA KING ORDER. AT ANY STRETCH OF IMAGINATION, THE ASSESSING OFFICER I S NOT EXPECTED TO IGNORE THE DIRECTIONS OF THE HIGH COURT AND OMIT TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. SINCE T HE DIRECTION OF THE HIGH COURT WAS NOT COMPLIED WITH AND THE ASSESSING OFFICER FAILED TO CONSIDER THE ADDITIONAL EVIDENCE FILED BY THE AS SESSEE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER AS DIRECTED B Y THE HIGH COURT. ACCORDINGLY, THE ORDER OF THE ASSESSING OFF ICER IS SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE O F THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER TH E ISSUE AFRESH AS DIRECTED BY THE HIGH COURT IN ITS JUDGMENT DATED 27 .03.2012 AND PASS A FRESH ASSESSMENT ORDER IN ACCORDANCE WITH LA W, AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. SINCE THE MATTER IS 8 I.T.(SS) A. NO.12/MDS/13 PENDING FROM THE YEAR 1996, THE ASSESSING OFFICER S HALL TAKE ALL ENDEAVOUR TO COMPLETE THE ASSESSMENT PROCEEDINGS WI THIN SIX MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORD ER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19 TH JUNE, 2015 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 19 TH JUNE, 2015. KRI. - +056 7620 /COPY TO: 1. () /APPELLANT 2. +,() /RESPONDENT 3. 68 +0 /DR 4. 9: ; /GF.