Sri K.Thulasilingam, CHENNAI V. DCIT, Salem

ITSSA 6/CHNY/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1693 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 28-02-2012
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: DR ANITA SUMANTH
• Keywords: Bonafide belief; Block assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , ! ' # , $ %& ' [ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD , JUDICIAL MEMBER ] ./ I.T.(SS)A.NO.06/MDS/2012 BLOCK PERIOD 1986-87 TO 1996-97 AND 1.4.1995 TO 1 6.2.1996 SHRI K. THULASILINGAM PROP. M/S APSARA SILK CENTRE NO.8-1A, ANNA STREET SALEM VS. THE DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE SALEM [PAN AADPT 2331 E ] ( () / APPELLANT) ( #*() /RESPONDENT) / APPELLANT BY : DR.ANITA SUMANTH, A D VOCATE /RESPONDENT BY : DR. B. NI SCHAL, JCIT / DATE OF HEARING : 24 - 03 - 2016 / DATE OF PRONOUNCEMENT : 30 - 03 - 2016 + / O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE ASSESSING OFFICER PASSED U/S 158BC R.W.S 254 OF THE INCOME-TAX ACT, 1961, DATED 29.12.2011. 2. THIS APPEAL IS FILED WITH A DELAY OF 30 DAYS ALONGW ITH A PETITION FOR CONDONATION OF DELAY. IT IS THE CONTE NTION OF THE ASSESSEE THAT HE WAS UNDER THE BONAFIDE IMPRESSION THAT THE APPEAL WAS TO BE IT(SS)A NO. 6/12 :- 2 -: FILED WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF TH E ORDER PASSED U/S 158BC OF THE ACT AND THE PAPERS WERE FORWARDED TO T HE COUNSEL ONLY IN THE MIDDLE OF FEBRUARY, 2012. ON RECEIPT OF THE PA PERS, THE COUNSEL HAD NOTICED THAT THE APPEAL IN THIS CASE WOULD HAVE TO BE FILED WITHIN 30 DAYS, BEING A DIRECT APPEAL TO THE TRIBUNAL AGAI NST THE ORDER OF BLOCK ASSESSMENT IN RELATION TO A SEARCH INITIATED BEFORE 1.1.1997 AS PROVIDED IN THE PROVISO TO SEC. 253(3) OF THE ACT. THEREFORE, THE PETITIONER SUBMITS THAT THE PAPERS WERE IMMEDIATELY PREPARED BY THE COUNSEL AND FORWARDED TO THE ASSESSEE AND THE APPE AL WAS FILED ON 28.2.2012 WITH A DELAY OF 30 DAYS WHICH IS NEITHER WILLFUL NOR WANTON BUT FOR THE BONAFIDE BELIEF AND IMPRESSION AS STATE D ABOVE AND PRAYS FOR CONDONATION OF DELAY. THE LD. DR HAS NO SERIO US OBJECTION IN CONDONING THE DELAY OF 30 DAYS. HAVING GONE THROUG H THE PETITION AND THE AFFIDAVIT, WE FIND THAT THERE WAS REASONABLE CA USE IN NOT FILING THE APPEAL IN TIME. THUS, WE CONDONE THE DELAY OF 30 D AYS AND ADMIT THE APPEAL. 3. THE ASSESSEE IN HIS APPEAL HAS RAISED SEVERAL GROU NDS I.E ON LIMITATION AND ALSO ON MERITS. IN SO FAR AS THE ME RITS ARE CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THER E IS A SPECIFIC GROUND RAISED BY THE ASSESSEE STATING THAT THE ASS ESSING OFFICER OUGHT TO HAVE ADOPTED THE ASSETS BASIS FOR COMPLETION O F THE ASSESSMENT IN SO FAR AS THE SAME HAD BEEN ADOPTED BY THE TRIBUNAL AS BEING THE IT(SS)A NO. 6/12 :- 3 -: PROPER COURSE TO ADOPT IN THE APPEALS OF VARIOUS CO NNECTED FAMILY MEMBERS/GROUP ENTITIES. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUB MITS THAT IT IS THE THIRD ROUND OF APPEAL BEFORE THE TRIBUNAL . SHE SUBMITS THAT THE TRIBUNAL IN THE LAST ROUND IN I.T.(SS)A.NO.77/M DS/2002 DATED 10.12.2010 PASSED A COMMON ORDER IN THE CASE OF THE ASSESSEE AS WELL AS GROUP CASES. THE LD. COUNSEL SUBMITS THAT THE TRIBUNAL IN PARA 8 OF ITS ORDER, SPECIFICALLY HELD THAT ASSETS BASI S SHOULD BE ADOPTED TO FRAME THE BLOCK ASSESSMENT IN THE CASE OF THE ASSE SSEE SHRI K. SADASIVAM IN I.T.(SS)A NO.73/MDS/2002 AND ALL OTHER CASES OF THIS GROUP WHICH ALSO INCLUDE THE ASSESSEE. THE LD. CO UNSEL FURTHER SUBMITS THAT THE ASSESSING OFFICER HAS NOT FOLLOWED THIS DIRECTION IN ASSESSEES CASE BY OBSERVING THAT NO SUCH DIRECTION IS GIVEN BY THE TRIBUNAL IN ITS ORDER DATED 10.12.2010 WHILE DISPOS ING OF THE ASSESSEES APPEAL. 5. WE HAVE PERUSED THE ORDER OF THE TRIBUNAL DATED 10.12.2010. IT IS THE COMMON ORDER IN I.T.(SS)A.NO S.73 TO 77/MDS/2002 AND 119/MDS/2003 IN THE CASE OF SHRI K . SADASIVAM AND GROUP. IN PARA 8 OF THE ORDER, THE TRIBUNAL HAS OB SERVED AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE CAREFULLY PERUSED THE RECORDS. IT IS A FACT THAT N O DIRECT INCRIMINATING EVIDENCE WAS EITHER FOUND OR SEIZED D URING SEARCH TO MAKE THE BASIS OF ADDITION IN THE BLOCK A SSESSMENTS. IT(SS)A NO. 6/12 :- 4 -: THE ASSESSEE HAD STATED THAT THE ENTIRE INCOME SOU GHT TO BE ASSESSED REPRESENTED THE PROFITS OF VARIOUS ASSESS EES OF THE GROUP AND THE SAME HAS BEEN OFFERED FOR TAX BY THEM. ACCORDING TO THE ASSESSEE, THE ENTIRE INCOME CANNO T BE ASSESSED IN ASSESSEES HANDS ALONE. IN OTHER WORD S, THE ASSESSEE HAS SUBMITTED THAT THE ASSESSMENT HAS BEEN MADE ON THE BASIS OF NET ASSETS AND NOTHING ELSE. THE ASSE SSING OFFICER HAS ALTHOUGH FOUND THIS TO BE A CORRECT FAC T, BUT HE TOOK SHELTER UNDER THE FACT THAT THIS PLEA WAS NOT RAISED IN THE FIRST ROUND BEFORE THE TRIBUNAL, SO IT CANNOT B E RAISED NOW. WE ARE NOT IN AGREEMENT WITH THIS FINDING OF THE ASSESSING OFFICER BECAUSE THE TRIBUNAL HAS SIMPLY S ET ASIDE THE ORIGINAL BLOCK ASSESSMENTS AND HAS GIVEN A FREE HAND TO THE ASSESSING OFFICER AS WELL AS THE ASSESSEE TO M AKE FRESH ASSESSMENT. THE ASSESSEE WAS ALSO AT LIBERTY TO R AISE ANY PLEA BECAUSE ONE OF THE POINTS FOR REMANDING THE MA TTER WAS THAT OPPORTUNITY OF HEARING WAS NOT PROPERLY GIVEN. WE ARE IN AGREEMENT WITH THIS SUBMISSION RAISED THROUGH THE G ROUNDS IN THE APPEAL THAT ASSETS-BASIS SHOULD BE ADOPTED TO FRAME THE BLOCK ASSESSMENT IN THIS CASE AND ALL OTHER CASES O F THIS GROUP. WITH THIS OBSERVATION, WE REMAND THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER AND ALLOW THE GROUNDS FOR STA TISTICAL PURPOSES ONLY. 6. ON PERUSAL OF THE DIRECTION OF THE TRIBUNAL, WE FIN D THAT THE TRIBUNAL IN ITS ABOVE ORDER AGREED WITH THE SUBMISS IONS OF THE ASSESSEE THAT ASSETS BASIS SHOULD BE ADOPTED TO F RAME BLOCK ASSESSMENT IN THE CASE OF SHRI K. SADASIVAM AND ALL OTHER CASES OF HIS GROUP. WE HAVE ALSO PERUSED THE ASSESSMENT ORDER D ATED 29.12.2011 PASSED U/S 158BC R.W.S 254 OF THE ACT. THE ONLY RE ASON GIVEN BY THE ASSESSING OFFICER IN REJECTING THE ASSETS BASIS M ETHOD ASSESSMENT IN ASSESSEES OWN CASE IS THAT THERE IS NO SEARCH IN T HE RESIDENTIAL PREMISES OF THE ASSESSEE. NOWHERE IT IS DENIED TH AT THE ASSESSEE IS IT(SS)A NO. 6/12 :- 5 -: NOT FORMING PART OF GROUP OF SHRI K. SADASIVAM. TH EREFORE, IN SUCH CIRCUMSTANCES, WHEN THERE IS NO DISPUTE THAT THE A SSESSEE IS FORMING PART OF SHRI K. SADASIVAM GROUP, THE DIRECTION GIVE N BY THE TRIBUNAL IN THE CASE OF SHRI K.SADASIVAM AND OTHER CASES OF HIS GROUP APPLIES EVEN TO THE ASSESSEE. THUS, WE DIRECT THE ASSESSING OF FICER TO ADOPT ASSETS BASIS METHOD IN FRAMING BLOCK ASSESSMENT I N THE CASE OF THE ASSESSEE AS DIRECTED BY THE TRIBUNAL IN ITS ORDER D ATED 10.12.2010 OR FRAME THE ASSESSMENT BASED ON SEIZED MATERIALS AND COMPLETE THE ASSESSMENT ACCORDINGLY AFTER PROVIDING ADEQUATE OPP ORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH, 2016, AT CHENNAI. SD/- SD/- ( ! ' ) (CHANDRA POOJARI) #$ / ACCOUNTANT MEMBER % & '( # ) ( CHALLA NAGENDRA PRASAD) ( ) #$ / JUDICIAL MEMBER ( / CHENNAI *# / DATED: 30 TH MARCH, 2016 RD #+ ),- .- / COPY TO: 1 . / APPELLANT 4. / / CIT 2. / RESPONDENT 5. -0 ' ))12 / DR 3. / %3 / CIT(A) 6. ' 45 6 / GF