ACIT NON CORPORATE CIRCLE 20, CHENNAI V. M/S KALAIGNAR TV PRIVATE LIMITED, CHENNAI

MA 147/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7252 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SWAMINATHAN
• Assessee Lawyers: SANDEEP BAGMAR R; P WILLSONSR
• Keywords: Principle of natural justice; Opportunity of cross examination

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.1678/CHNY/2018 / ASSESSMENT YEAR : 2011-12 M/S.KALAIGNAR TV PVT. LTD ., NO.367/369,ANNA SALAI, TEYNAMPET, CHENNAI 600 018. VS. DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 20(1), CHENNAI. [ PAN AADCK 0898 E ] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.1694/CHNY/2018 AND M.P.NO.147/CHNY/2018 (S.P.NO.195/CHNY/2018 IN ITA NO.1678/CHNY/2018) / ASSESSMENT YEAR : 2011-12 DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 20(1), CHENNAI. VS. M/S.KALAIGNAR TV PVT. LTD ., NO.367/369,ANNA SALAI, TEYNAMPET, CHENNAI 600 018 [ PAN AADCK 0898 E ] ( / APPELLANT) ( /RESPONDENT) ASSESSEE BY : MR.P.WILLSON,SR.ADVOCATE & MR.SANDEEP BAGMAR.R. ADVOCATE REVENUE BY : MR.M.SWAMINATHAN, STANDING COUNSEL FOR DEPARTMENT ! ' #$ / DATE OF HEARING : 09 - 01 - 201 9 % ' #$ / DATE OF PRONOUNCEMENT : 09 - 01 - 201 9 ITA NOS.1678 & 1694/CHNY/2018 M/S.KALAIGNAR TV P LTD M.P NO.147/CHNY/2018 :- 2 -: / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS CROSS APPEAL FILED BY THE ASSESSEE AND THE R EVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIO NER OF INCOME TAX(A)-14, CHENNAI DATED 15.03.2018 PERTAINING TO T HE ASSESSMENT YEAR 2011-12. M.P NO.147/CHNY/2018 IS A MISCELLANEOUS PETITION FILED BY THE REVENUE AGAINST THE ORDER OF TRIBUNAL IN RESPECT OF STAY PETITION FILED BY THE ASSESSEE IN S.P NO.195/C HNY/2018 IN ITA NO.1678/CHNY/2018, DATED 25.05.2018. AS BOTH THE APPEALS AND THE M.P ARE RELATED TO THE SAME ASSESSEE AND IN TER-CONNECTED, THESE ARE DISPOSED OFF BY THIS COMMON ORDER. 2. MR.P.WILLSON, SR.ADVOCATE AND MR.SANDEEP BAGMAR .R. ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND MR.M., STANDING COUNSEL FOR DEPARTMENT REPRESENTED ON BEHALF OF THE REVENUE. 3. AS THE REVENUE HAS NOT BEEN POINTED OUT ANY ERR OR IN THE ORDER OF TRIBUNAL IN THE M.P FILED BY IT, THE M.P FILED B Y THE REVENUE IS DISMISSED. 4. IN THE ASSESSEES APPEAL IN ITA NO.1678/CHNY/20 18, IT WAS SUBMITTED BY LD.A.R THAT IN THE ASSESSMENT ORDER, THE LD. ASSESSING OFFICER HAS RELIED UPON THE VARIOUS DOCUMENTS AND I NVESTIGATION REPORTS, WHICH HAVE NOT BEEN GIVEN TO THE ASSESSEE. FURTHER, LD.A.R DREW OUR ATTENTION TO PARA 4.4 OF ASSESSMENT ORDER WHEREIN THE LD. ITA NOS.1678 & 1694/CHNY/2018 M/S.KALAIGNAR TV P LTD M.P NO.147/CHNY/2018 :- 3 -: ASSESSING OFFICER TALKS OF INVESTIGATION CONDUCTED BY THE INVESTIGATION WING, CHENNAI. IT WAS A SUBMISSION THAT WHAT IS THE INVESTIGATION REPORTS, WHO ARE EXAMINED, NOTHING IS KNOWN AND NO DETAILS HAVE ALSO BEEN GIVEN TO THE ASSESSEE FOR ITS REBUTTAL. FURTHE R, LD.A.R DREW OUR ATTENTION TO PARA 5.5 OF ASSESSMENT ORDER WHEREIN THE A.O MENTIONED THAT IN ORDER TO VERIFY THE GENUINENESS OF THE TRAN SACTIONS, INFORMATION U/S.133(6) OF THE INCOME TAX ACT,1961 HAD BEEN CALL ED FOR FROM THREE COMPANIES AND THESE EVIDENCES, WHICH HAS BEEN COLLE CTED U/S.133(6) OF THE ACT, WERE NOT GIVEN TO THE ASSESSEE FOR ITS REBUTTAL. THE LD.A.R DREW OUR ATTENTION TO PARA 5.4.3 WHEREIN GATHERED I NFORMATION U/S.133(6) OF THE ACT HAS BEEN USED IN THE COURSE O F ASSESSMENT. FURTHER, LD.A.R DREW OUR ATTENTION TO PARA 5.5.2 TO SUBMIT THAT FURTHER INFORMATION U/S.133(6) OF THE ACT HAS BEEN CALLED F OR, BUT NOT GIVEN TO THE ASSESSEE. HE ALSO DREW OUR ATTENTION TO PARA 5. 5.7 OF THE ASSESSMENT ORDER TO SUBMIT THAT THE LD. ASSESSING O FFICER TALKS OF NOTICE U/S.133(6) OF THE ACT BEING ISSUED ON M/S.UN ITED SPIRITS LTD AND USING THE SAME EVIDENCES WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF REBUTTAL. LD.A.R FURTHER DREW OUR ATTENTION TO PARA 5.6.2 TO SUBMIT THAT VARIOUS DISPOSITION HAS BEEN MADE AND COLLECTED, WH ICH HAS NOT BEEN GIVEN TO THE ASSESSEE FOR ITS CROSS EXAMINATION OR REBUTTAL. IT WAS A SUBMISSION THAT THE ASSESSMENT HAS BEEN COMPLETED W ITHOUT CONSIDERING ANY OF THE SUBMISSIONS OF THE ASSESSEE BUT BY TAKING INTO ITA NOS.1678 & 1694/CHNY/2018 M/S.KALAIGNAR TV P LTD M.P NO.147/CHNY/2018 :- 4 -: CONSIDERATION THE EVIDENCES, WHICH HAVE BEEN COLLEC TED BEHIND THE BACK OF THE ASSESSEE AND USED IN THE ASSESSMENT WI THOUT GIVING ASSESSEE AN OPPORTUNITY OF CROSS EXAMINATION OR REB UTTAL OF THE SAME. IT WAS A SUBMISSION THAT HE HAD NO OBJECTION, IF TH E ISSUES WERE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. 5. THE LD. STANDING COUNSEL SUBMITTED THAT THE LD. ASSESSING OFFICER HAS ALSO NOT HAD AN OPPORTUNITY TO EXAMINE THE GENU INENESS OF THE CLAIM OF ADVERTISEMENT REVENUES. IT WAS A SUBMISSI ON THAT HE HAD NO OBJECTION, IF THE ASSESSMENT WAS RE-DONE DENOVO. I T WAS A SUBMISSION THAT HOWEVER AS THE FIRST APPELLATE AUTHORITY UPHEL D THE ASSESSMENT ORDER, THE SAME WAS LIABLE TO BE UPHELD BY THE TRIB UNAL ALSO. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSESSING O FFICER HAS COLLECTED VARIOUS EVIDENCES AND THE SAME HAVE NOT B EEN PUT FOR THE ASSESSEE FOR ITS REBUTTAL. FURTHER, PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSESSING OFFICER HAS ALSO N OT DONE ANY EXAMINATION IN RESPECT OF THE ADVERTISEMENT REVENUE S CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE. THE ASSESSING OFFIC ER HAS COMPLETED THE ASSESSMENT PURELY ON THE BASIS OF PRESUMPTIONS THAT THE TRANSACTIONS ARE BOGUS. THUS, THERE IS INSUFFICIENC Y OF THE FACTS COMING OUT OF THE ASSESSMENT ORDER AS ALSO THERE IS A CLEA R VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IN SO FAR AS EVIDENCES COLLECTED AGAINST THE ITA NOS.1678 & 1694/CHNY/2018 M/S.KALAIGNAR TV P LTD M.P NO.147/CHNY/2018 :- 5 -: ASSESSEE HAVE NOT BEEN GIVEN TO THE ASSESSEE FOR HI S REBUTTAL. THIS BEING SO, IN THE INTEREST OF NATURAL JUSTICE TO BOT H THE SIDES, THE ASSESSMENT ORDER IS SET ASIDE AND THE ISSUES ARE RE STORED TO THE FILE OF LD. ASSESSING OFFICER FOR RE-ADJUDICATION DENOVO. T HE LD. ASSESSING OFFICER SHALL PROVIDE THE ASSESSEE ALL EVIDENCES CO LLECTED BY HIM AND WHICH HE PROPOSES TO USE IN THE COURSE OF ASSESSMEN T AGAINST THE ASSESSEE. THE LD. ASSESSING OFFICER SHALL ALSO BE A T LIBERTY TO CALL FOR ANY DOCUMENTS, WHICH HE FEELS IS NECESSARY FOR THE COMPLETION OF THE ASSESSMENT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE AS W ELL AS THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATIST ICAL PURPOSES AND M.P FILED BY REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 09 TH JANUARY, 2019, AT CHENNAI. SD/ - SD/ - ( . ) (A.MOHAN ALANKAMONY) ! '# / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ '# / JUDICIAL MEMBER ( ! / CHENNAI ) / DATED: 09 TH JANUARY, 2019. K S SUNDARAM * ' +#,- . -# / COPY TO: 1 . /0 / APPELLANT 3. 1# () / CIT(A) 5. -23 +#4 / DR 2. +5/0 / RESPONDENT 4. 1# / CIT 6. 36 7! / GF