DCIT, Trichy V. S.Parasmal Gidia, Trichy

ITSSA 4/CHNY/2017

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3391 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PALANIVEL
• Keywords: Block assessment

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 I.T.(SS) A. NO.4/MDS/2017 BLOCK ASSESSMENT PERIOD : 1997 TO 2003 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1), NO.44, WILLIAMS ROAD, CANTONMENT, TRICHY-620 001. V. SHRI S. PARASMAL GIDIA, B-7, THILLAI NAGAR 1 ST CROSS, TRICHY 620 018. PAN : AACPP 2688 K (&'/ APPELLANT) ()*&'/ RESPONDENT) &' + , / APPELLANT BY : SHRI G.M. DOSS, CIT )*&' + , / RESPONDENT BY : SH. PHILIP GEORGE, ADVOCATE & SH. PALANIVEL, ADVOCATE - + .# / DATE OF HEARING : 06.09.2017 /01 + .# / DATE OF PRONOUNCEMENT : 14.09.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -2, TIRUCH IRAPPALLI, DATED 19.01.2017 AND PERTAINS TO BLOCK ASSESSMENT P ERIOD 1997 TO 2003. 2. THERE WAS A DELAY OF 41 DAYS IN FILING THIS APPE AL BY THE REVENUE. THE REVENUE HAS FILED A PETITION FOR COND ONATION OF 2 I.T.(SS) A. NO.4/MDS/2017 DELAY. WE HAVE HEARD THE LD. D.R. AND LD.COUNSEL F OR THE ASSESSEE. WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE C ONDONE THE DELAY AND ADMIT THE APPEAL. 3. SHRI G.M. DOSS, THE LD. DEPARTMENTAL REPRESENTAT IVE, SUBMITTED THAT THIS IS THE SECOND ROUND OF LITIGATI ON BEFORE THIS TRIBUNAL. IN FACT, THE ASSESSMENT RELATES TO OLD B LOCK ASSESSMENTS. ACCORDING TO THE LD. D.R., IN THE FIRST ROUND OF LI TIGATION, THIS TRIBUNAL DIRECTED THE ASSESSING OFFICER TO EXAMINE THE SEARC H DOCUMENTS AND FIND OUT THE CASH AVAILABLE WITH THE ASSESSEE A ND SALE PROCEEDS FROM JEWELLERY AND THEREAFTER FIND OUT WHETHER THE SALE PROCEEDS HAVE BEEN USED FOR ACQUISITION OF ANY OTHER ASSET. IF IT IS NOT FOUND, THEN CORRESPONDING CREDIT SHOULD BE GIVEN TOWARDS U NACCOUNTED MONEY LENDING BUSINESS. ON THE BASIS OF THIS DIREC TION, ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER EXAMINED THE SA ME AND MADE THE SAME ADDITION AS IN THE ORIGINAL ASSESSMENT. O N APPEAL BY THE ASSESSEE, THE CIT(APPEALS) DELETED THE ADDITION MAD E BY THE ASSESSING OFFICER. ACCORDING TO THE LD. D.R., THE CIT(APPEALS) OUGHT NOT TO HAVE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 3 I.T.(SS) A. NO.4/MDS/2017 4. ON THE CONTRARY, SH. PHILIP GEORGE, THE LD.COUNS EL FOR THE ASSESSEE, SUBMITTED THAT IN THE FIRST ROUND OF LITI GATION THIS TRIBUNAL SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND S PECIFICALLY DIRECTED THE ASSESSING OFFICER TO FIND OUT THE SALE PROCEEDS OF JEWELLERY AND THEN CORRESPONDING CREDIT SHOULD BE GIVEN TOWARDS U NACCOUNTED MONEY LENDING BUSINESS. ACCORDING TO THE LD. COUNS EL, THE ASSESSING OFFICER INSPITE OF THE DIRECTION OF THIS TRIBUNAL, FOUND THAT IT IS FOR THE ASSESSEE TO PROVE THE UTILIZATION OF SALE PROCEEDS. IT WOULD BE TRAVESTY OF JUSTICE THAT ONUS SHOULD BE PU T ON THE DEPARTMENT. THIS OBSERVATION OF THE ASSESSING OFFI CER IS TOTALLY CONTRARY TO THE OBSERVATION MADE BY THIS TRIBUNAL. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN THE ORIGINAL ROUND OF LITIGATION, THE ASSESSING OFFICER MADE ADD ITION OF ` 43,25,000/-. THIS TRIBUNAL, AFTER HEARING BOTH THE PARTIES, HAS OBSERVED AS FOLLOWS AT PARA 13 OF ITS ORDER DATED 1 7.08.2008:- 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY IN THE LIGHT OF THE MATERIAL ON RECORD. AS FAR AS ADDITION 4 I.T.(SS) A. NO.4/MDS/2017 OF ` 43.25 LAKHS IS CONCERNED, THE SAME HAS BEEN MADE ON THE BASIS OF PRO NOTES, BLANK CHEQUES ETC., FOUND D URING THE TIME OF SEARCH AND EVEN DEBTORS HAVE BEEN EXAMINED B Y THE ASSESSING OFFICER. IN ANY CASE, THE ASSESSEE H AS ALSO SUBMITTED A LETTER THAT SUCH ADDITION MAY BE MADE. HOWEVER, AT THE SAME TIME WE FAIL TO UNDERSTAND WHY CREDIT SHOULD NOT BE GIVEN AGAINST CASH, IF ANY, WH ICH HAD BEEN DRAWN FROM THE BOOKS OR SALE PROCEEDS OF VARIO US ITEMS OF JEWELLERY. THE ONLY RESTRICTION CAN BE TH AT CASH MIGHT HAVE BEEN USED FOR ACQUISITION OF SOME OTHER ASSETS. THEREFORE, WE SET ASIDE THE ORDER OF THE CIT(APPEAL S) AND REMIT THE MATTER TO ASSESSING OFFICER WITH A DIRECT ION TO EXAMINE THE SEARCH DOCUMENTS CAREFULLY AND VERIFY WHETHER CASH WAS AVAILABLE WITH THE ASSESSEE AND SA LE PROCEEDS FROM SALE OF JEWELLERY ETC., HAVE BEEN USE D FOR ACQUIRING OTHER ASSETS AND IF NOT FOUND SO, THEN CORRESPONDING CREDIT SHOULD BE GIVEN TOWARDS UNACCO UNTED MONEY LENDING BUSINESS. NEEDLESS TO EMPHASISE THAT THE ASSESSEE SHALL BE GIVEN ADEQUATE OPPORTUNITY OF HEA RING IN THE MATTER. 6. IT IS AN ADMITTED FACT THAT NO APPEAL WAS FILED EITHER BY THE REVENUE OR BY THE ASSESSEE AGAINST THIS ORDER OF TH E TRIBUNAL. IN OTHER WORDS, THE ORDER OF THIS TRIBUNAL DATED 17.10 .2008 HAS ATTAINED FINALITY. THEREFORE, THE ASSESSING OFFICE R HAS TO EXAMINE THE SEARCH DOCUMENTS AND FIND OUT WHETHER CASH WAS AVAILABLE WITH THE ASSESSEE AND SALE PROCEEDS OF JEWELLERY WERE US ED FOR ACQUISITION OF ANY OTHER ASSET. IF IT IS NOT UTILI SED, THEN CORRESPONDING CREDIT SHOULD BE GIVEN TO THE UNACCOU NTED MONEY LENDING BUSINESS AS DIRECTED BY THIS TRIBUNAL. IN THIS CASE, THE ASSESSING OFFICER SPECIFICALLY FOUND THAT THERE WAS NO EVIDENCE FOR 5 I.T.(SS) A. NO.4/MDS/2017 ACQUISITION OF OTHER ASSETS BY THE ASSESSEE. THERE FORE, THE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. HENCE, THIS TRIBUNAL DO NOT FIN D ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED ON 14 TH SEPTEMBER, 2017 AT CHENNAI. SD/- SD/- ( ! ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 3 /DATED, THE 14 TH SEPTEMBER, 2017. KRI. + ).45 651. /COPY TO: 1. &' /APPELLANT 2. )*&' /RESPONDENT 3. - 7. () /CIT(A)-2, TIRUCHIRAPALLI 4. PRINCIPAL CIT, TRICHY-2, TRICHY 5. 58 ). /DR 6. 9 : /GF.