K.T.Kunjumon, CHENNAI V. ACIT, CHENNAI

ITSSA 22/CHNY/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7821 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 11-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RANGARAJAN JUNIOR
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Capital asset; Block assessment
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T (SS) A. NO. 22/MDS/2011 BLOCK ASSESSMENT PERIOD : 1.4.86 TO 31.3.96 & 1.4.96 TO 20.1.07 SHRI K.T. KUNJUMON, NO.4, BUDDHA STREET, ASHOK AVENUE, KODAMBAKKAM, CHENNAI 600 024. PAN : ACZPK1724A (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(5), CHENNAI 600 034. (RESPONDENT) APPELLANT BY : SHRI B. RAMAKRISHNAN, CA RESPONDENT BY : SHRI K.E.B. RA NGARAJAN, JUNIOR STANDING COUNSEL DATE OF HEARING : 05.01.2012 DATE OF PRONOUNCEMENT : 05.01.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THIS APPEAL FILED BY THE ASSESSEE, IT ASS AILS THE ORDER DATED 12.9.2011 OF COMMISSIONER OF INCOME TAX (APPE ALS)-I, CHENNAI, DISMISSING HIS APPEAL BEFORE HIM IN LIMINE ON THE GROUND THAT ADMITTED TAX WAS NOT PAID BY THE ASSESSEE. I.T (SS) A. NO. 22/MDS/11 2 2. WHEN THE CASE CAME UP BEFORE US, LEARNED A.R. SU BMITTED THAT THE APPEAL BEFORE THE CIT(APPEALS) WAS AGAINST AN O RDER PASSED BY THE ASSESSING OFFICER PURSUANT TO A REVISIONARY ORD ER UNDER SECTION 263 OF INCOME-TAX ACT, 1961 (IN SHORT THE ACT) OF COMMISSIONER OF INCOME TAX (CIT). FURTHER, ACCORDING TO HIM, PRIOR TO THE REVISIONARY ORDER, THE ORIGINAL ASSESSMENT WAS SUBJECT MATTER O F APPEAL BEFORE LD. CIT(APPEALS) WHERE ALSO LD. CIT(APPEALS) HAD NOT AD MITTED ASSESSEES APPEAL FOR NON-PAYMENT OF ADMITTED TAX. LEARNED A.R. PLACED THE ORDER OF ASSESSEES APPEAL IN I.T (SS) A . NO. 2/MDS/2011 DATED 4.10.2011 BY WHICH THIS TRIBUNAL DIRECTED THE CIT(APPEALS) TO CONSIDER ASSESSEES APPEAL ON MERITS SINCE THERE WA S REASONABLE AND SUFFICIENT REASON TO EXEMPT THE ASSESSEE FROM O PERATION OF CLAUSES (A) AND (B) OF SUB-SECTION (4) OF SECTION 2 49 OF THE ACT. THEREFORE, ACCORDING TO HIM, THE IMPUGNED ORDER OF LD. CIT(APPEALS) HAD ALSO TO BE SET ASIDE AND REMITTED BACK TO CIT(A PPEALS) FOR CONSIDERATION AFRESH. 3. LEARNED D.R. DID NOT RAISE ANY SERIOUS OBJECTION ON THE AVERMENTS MADE BY LEARNED A.R. 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. ORIGINAL ASSESSMENT WAS FOR THE BLOCK PERIOD FROM 1 .4.86 TO 31.3.96. I.T (SS) A. NO. 22/MDS/11 3 THE SAID ORDER WAS PASSED UNDER SECTION 158 BC [(RE AD WITH SECTION 143(3)]. THE ADDITIONS MADE IN THE SAID ORDER WERE CARRIED IN APPEAL BEFORE LD. CIT(APPEALS). LD. CIT(APPEALS) REFUSED TO ENTERTAIN THE APPEAL FOR THE REASON THAT TAX ON ADMITTED INCOME W AS NOT PAID. THE TRIBUNAL IN ITS ORDER DATED 4 TH OCTOBER, 2011 IN I.T (SS) A. NO. 2/MDS/2011 FOUND THE REASONS GIVEN BY THE ASSESSEE TO BE SUFFICIENT ENOUGH TO EXEMPT FROM OPERATION OF CLAUSES (A) AND (B) REGARDING PAYMENT OF ADMITTED TAX AND REMITTED BACK THE APPEA L TO THE CIT(APPEALS). MEANWHILE, CIT TOOK REVISIONARY ACTI ON UNDER SECTION 263 OF THE ACT. PURSUANT TO SUCH REVISIONARY ACTI ON, THE A.O. PASSED A FRESH ORDER UNDER SECTION 263 READ ALONG WITH SEC TION 158BC READ WITH SECTION 143(3) OF THE ACT AGAINST WHICH ANOTHE R APPEAL WAS MOVED BY THE ASSESSEE BEFORE LD. CIT(APPEALS). LD. CIT(APPEALS) AGAIN REFUSED TO ENTERTAIN FOR THE REASON THAT TAX ON ADMITTED INCOME STOOD UNPAID. IN SUCH CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE EARLIER ORDER OF THIS TRIBUNAL IN RELATION TO THE O RIGINAL PROCEEDINGS WILL HAVE TO BE APPLIED SINCE THE FACT SITUATION REMAINS THE SAME. IT WAS HELD BY THE TRIBUNAL IN ITS ORDER IN I.T (SS) A. NO . 2/MDS/2011 AT PARA 10 AS UNDER:- 10. THE PROVISO APPENDED BY THE DIRECT TAX (AMENDME NT) ACT, 1989 WITH EFFECT FROM 1.4.1989 MAKES IT CLEAR THAT THE LD. I.T (SS) A. NO. 22/MDS/11 4 CIT(A) HAS POWER TO EXEMPT THE ASSESSEE FROM THE OP ERATION OF THE ABOVE CLAUSES. THUS, IN OUR OPINION, THE LD. C IT(A) HAS TAKEN AN INCORRECT DECISION. IT WAS SUBMITTED BEFORE US THAT THE ASSESSEE HAD GOT CAPITAL ASSET BUT NO LIQUID MONEY IN HIS HANDS AND THE DEPARTMENT IS AT LIBERTY TO SELL OUT A PORT ION OF THE ASSET AND RECOVER THE TAX DUES. IN THESE CIRCUMSTANCES, WE FIND THAT THERE IS REASONABLE AND SUFFICIENT REASON TO EXEMPT THE ASSESSEE FROM THE OPERATION OF THESE CLAUSES. ACCORDINGLY, WE EXEMPT THE ASSESSEE FROM THE BAR OF THIS PROVISION AND DIRECT THE LD. CIT(A) TO DECIDE THE ISSUES RAISED BEFORE HIM ON MERITS OF THE CASE. HOWEVER, THE REVENUE IS AT LIBERTY TO RECOVER THE D UES AS STATED ABOVE. HENCE, WE ARE OF THE OPINION THAT ASSESSEE IS TO SU CCEED HERE ALSO. WE SET ASIDE THE ORDER OF CIT(APPEALS) AND REMIT TH E APPEAL BACK TO HIM FOR CONSIDERATION AFRESH AND TO DECIDE THE ISSU ES ON MERITS. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 5 TH JANUARY, 2012. SD/- SD/- (GEORGE MATHAN) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 5 TH JANUARY, 2012. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-I, CHENNAI/ CIT, CENTRAL-I, CHENNAI/D.R./GUARD FILE