C.Nedumudikilli, CHENNAI V. JCIT, CHENNAI

MA 136/CHNY/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3999 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 08-01-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 07-08-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T N SEETHARAMAN
• Section: 263; 12

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . ! ' , # '$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER M.A. NOS. 134 TO 137/MDS/2015 & 198 TO 201/MDS/2015 (IN ITA NOS. 2149 TO 2152/MDS/2013 & 1472 TO 1475/ MDS/2014) / ASSESSMENT YEARS : 2001-02 TO 2004-05 SHRI C. NEDUMUDIKILLI, NO.2, KAMBAR ST., POSTAL AUDIT COLONY, SALIGRAMAM, CHENNAI 600 093. PAN ADFPN4869C (APPLICANT) V. THE JOINT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-IV(1), CHENNAI. ( RESPONDENT) APPLICANT BY : SHRI T.N.SEETHARAMAN, ADVOCATE RESPONDENT BY : SHRI A.B. KOLI, JCIT / DATE OF HEARING : 05.02.2016 / DATE OF PRONOUNCEMENT: 31.03.2016 % / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THESE MISCELLANEOUS PETITIONS, THE ASSESSEE SE EKS RECALL OF THE ORDER OF THE TRIBUNAL DATED 25.6.2015 . 2. ORIGINALLY, THE ASSESSEE CAME IN APPEAL BEFORE U S IN ITA NOS.2149 TO 2152/MDS/2013 AGAINST DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME-TAX(APPEALS) AND ALSO IN ITA NOS.1472 - - MA 134 TO 137/15 ETC. 2 TO 1475/MDS/2014 AGAINST DIFFERENT ORDERS OF THE CO MMISSIONER OF INCOME-TAX PASSED UNDER SEC.263 OF THE ACT. TH E TRIBUNAL VIDE ORDER DATED CONFIRMED THE ORDER OF THE CIT PAS SED U/S.263 OF THE ACT FOR THE ASSESSMENT YEARS 2001-02 TO 2004 -05 ON THE REASON THAT CIT IS JUSTIFIED IN EXERCISING JURISDIC TION U/S.263 OF THE ACT AND ALSO CONFIRMED THE ORDERS OF THE COMMISSION ER OF INCOME-TAX IN TOTO ON MERIT. 3. CONSEQUENT TO THIS, THE TRIBUNAL ALSO HELD IN IT A NOS.2149 TO 2152/MDS/2013 THAT THESE APPEALS ARE EM ANATED FROM THE ORDERS OF THE CIT AND THE ASSESSMENT ORDE RS CANNOT BE SURVIVED IN VIEW OF THE FACT THAT THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS 2001-02 TO 2004-05 WERE ALREADY SU BJECT MATTER OF REVISION U/S.263 BY THE CIT AND THE ORDER S U/S.263 OF THE ACT, FOR THOSE ASSESSMENT YEARS WERE CONFIRMED BY THE TRIBUNAL AND THERE WAS NO SURVIVAL OF ASSESSMENT OR DERS FOR THESE ASSESSMENT YEARS. ACCORDINGLY, THE APPEALS O F THE ASSESSEE IN ITA NOS.2149 TO 2152/MDS/2013 ARE DISMI SSED BY THE TRIBUNAL. 4. NOW, THE CONTENTION OF THE ASSESSEE IN M.A.NOS.1 34 TO 137/MDS/2015 IS THAT NOTWITHSTANDING THE FINDING OF THE COMMISSIONER OF INCOME-TAX IN THE ORDER PASSED U/S. 263 OF THE - - MA 134 TO 137/15 ETC. 3 ACT, WHICH IS RELATING TO STATUS OF THE ASSESSEE WH ETHER RESIDENT OR NON-RESIDENT, THERE IS OTHER ISSUE ALSO INVOLVED IN THE ASSESSMENT ORDERS AS WELL AS IN THE CIT(A) ORDERS. THE SAME WAS SUBJECT MATTER BEFORE THE TRIBUNAL MAINLY WITH REGARD TO FOREIGN REMITTANCE BY DD FROM CANADA, WHICH WAS TRE ATED AS INCOME U/S.69 OF THE ACT AND THIS HAS TO BE DECIDED BY THE TRIBUNAL ON MERIT, DE HORS THE FINDINGS OF THE CIT IN THE ORDER PASSED U/S.263 OF THE ACT. 5. ACCORDING TO THE LD. AR, THE TRIBUNAL COMMITTED ERROR IN NOT DECIDING THE ISSUE RAISED BY THE ASSESSEE IN IT A NOS.2149 TO 2152/MDS/2013 WITH REGARD TO THE MERIT OF THE ADDIT ION MADE U/S.69 OF THE ACT. AS SUCH, HE PRAYED THAT THE ORD ER PASSED BY THE TRIBUNAL IN ITA NOS.2149 TO 2152/MDS/13 IS TO B E RECALLED AND THE ORDER PASSED BY THE TRIBUNAL IN ITA NOS.147 2 TO 1475/MDS/2014 IS TO BE RECTIFIED ACCORDINGLY. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE RE IS NO ERROR KEPT IN THE ORDER OF THE TRIBUNAL SO AS TO RE CALL OR RECTIFY ANY PORTION OF THE ORDER OF THE TRIBUNAL DATED 25.6.201 5. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE TRIBUNAL WHILE DECIDING THE EARLIER APPEALS OF THE ASSESSEE IN ITA NOS.1472 TO 1475/MDS/2014 OBSERVED THAT THE - - MA 134 TO 137/15 ETC. 4 ORDER PASSED BY THE CIT U/S.263 OF THE ACT DATED 28 .3.2014 IS CORRECT. CONSEQUENTLY, THE TRIBUNAL OBSERVED THAT FOR THE ASSESSMENT YEARS 2001-02 TO 2004-05, THE APPEALS FI LED BY THE ASSESSEE IN ITA NOS.2149 TO 2152/MDS/2013 ARE EMANA TED FROM THE ASSESSMENT ORDERS, WHICH IS SUBJECT MATTER OF R EVISION BY THE CIT U/S.263 AND THERE IS NO SUSTENANCE OF ASSESSMEN T ORDERS FOR THESE ASSESSMENT YEARS SO AS TO ADJUDICATE. ACCORD INGLY, THE TRIBUNAL DISMISSED THE APPEALS OF THE ASSESSEE. 8. NOW, THE LD. AR SUBMITTED THAT THE CIT EXERCISE D HIS JURISDICTION WITH RESPECT TO CHANGE OF STATUS OF TH E ASSESSEE, WHETHER RESIDENT OR NON- RESIDENT AND HE HAS NOT AD JUDICATED THE ISSUE RELATING TO ADDITION MADE U/S.69 OF THE ACT. HOWEVER, WE FIND THAT THE CIT U/S.263 OF THE ACT DATED 28.3.201 4 HAS GIVEN A CATEGORICAL FINDING IN HIS ORDER FOR THE ASSESSMENT YEARS 2001-02 TO 2004-05 HOW TO DETERMINE THE INCOME FOR THESE A SSESSMENT YEARS WHICH CAN BE SEEN FROM PARA 6 PAGE 4 OF THE C IT ORDER FOR THE ASST. YEAR 2001-02. FOR CLARITY, THE SAME IS R EPRODUCED BELOW : 6. ACCORDINGLY , THE I NCOME IS DETERMINED AS BELOW : - T OTAL INCOM E A S ASSESSED IN ORDER ` 58,64,290 DT . 29 - 12 - 2008 L E SS : C AN ADIAN B USI N ES S I NC O ME C ONSIDERED - - MA 134 TO 137/15 ETC. 5 SEPARATELY ` 54,80,652 ` 3,83,638 AD D : CANAD I AN BUS I NESS INCOME AS PER COP I ES OF RETURNS OF I NCOME FURNISHED B Y CANIDIAN REVENUE AUTHORITIES VIDE THE I R REPORT DT . AUG . 24 2011 CONVEDRTED I NTO I NR @ RS.30 . 32254 PER CAD ( FO R 9 M ON TH S R ELA T IN G TO T HE YEAR 2001 AND 3 MONTHS TO 2002 I N RESPECT OF C . NEDUMUDIKILLLIS 1195792 & FOR 9 MONTH RELATING TO THE YE AR 2001 IN RESPECT OF BALASOUNDARY KILLY WIO C . NEDUMUDI K IL LL I S 4 8349 3 TOTAL - 1679285 ) ` 16,79,285 C ANA D IAN R EMITIANCES A D M IT IE D B Y THE ASSESSEE ` 54,80,652 SO URCE S FO R T H E AB O VE ARE WORKED OUT AS BELOW RE AD W ITH P A R A 5 ABOVE I N COM E ACT U AL LY EARNED IN CANADA ` 16 , 79,285 L ESS : TA X E S L E VIE D O N THE ABOVE EQUIVALENT TO INR ` 2 , 60 , 376 -------------------------- ` 14,18.909 LESS : 50% FOR PERSONAL ` 7,09,454 DRAWINGS FOREIGN INCOME ACTUALLY AVAILABLE FPR REMITTANCES ` 7,09,454 BALANCE TREATED AS REMITTANCES FROM UNDISCLOSED SOURCES ` 47,71,198 TOTAL INCOME DETERMINED TO BE ASSESSED ` 68,34,121 ========== 9. SIMILAR IS THE POSITION IN ALL OTHER ASSESSMENT YEARS ALSO. NOW, THE LD. AR STATED THAT THE CIT HAS NOT TOUCHED THE ISSUE RELATING TO MERIT OF THE ISSUE OF ADDITION U/S.69 O F THE ACT. WHEN THE - - MA 134 TO 137/15 ETC. 6 CIT HAS GIVEN A CATEGORICAL DIRECTION HOW TO COMPUT E THE INCOME OF THE ASSESSEE, THE LD. AR CANNOT SAY THAT THE CIT HA S NOT TOUCHED THE ISSUE RELATING TO THE MERIT OF THE ADDITION. S INCE, THE TRIBUNAL CONFIRMED THE ORDER OF THE CIT PASSED U/S.263 OF TH E ACT, IT CANNOT BE SAID THAT THE TRIBUNAL HAS COMMITTED ERROR IN DI SMISSING THE APPEALS IN ITA NOS.2149 TO 2152/MDS/2013. THE TRIB UNAL AFTER GOING THROUGH THE ENTIRE FACTS OF THE CASE, OBSERVE D THAT THE APPEALS IN ITA NOS.2149 TO 2152/MDS/2013 DO NOT REQ UIRE ADJUDICATION IN VIEW OF CONFIRMING THE ORDER PASSED BY THE CIT U/S.263 OF THE ACT AND THERE IS NO SUSTENANCE OF TH E ASSESSMENT ORDERS IN THESE ASSESSMENT YEARS, AS IT WAS REVISED BY THE CIT U/S.263 OF THE ACT VIDE ORDER DATED 28.3.2014. ACC ORDINGLY, IN OUR OPINION, THERE IS NO MISTAKE AS ALLEGED BY THE LD. AR IN THE ORDER OF THE TRIBUNAL DATED 25.6.2015. 10. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 31 ST OF MARCH, 2016 AT CHENNAI. SD/- SD/- ( . ) ( ) (G. 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