T.Chinnadurai, CHENNAI V. ITO, CHENNAI

MA 160/CHNY/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1462 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 01-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN IRS
• Assessee Lawyers: M GOPINATH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . , , BEFORE SHRI ABRAHAM P.GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER M.P.NO.160/CHNY/2018 ( IN ./I.T.A. NO.1426/CHNY/2017 ) / ASSESSMENT YEAR : 2012-2013. SHRI. T. CHINNADURAI, A7, VI CROSS STREET, INDIRA NAGAR, ADAYAR, CHENNAI 600 020. [PAN AEEPC 9133N] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX COMPANY CIRCLE I(3) CHENNAI 600 034 (PETITIONER) ( /RESPONDENT) PETITIONER BY : SHRI. M. GOPINATH, ADVOCATE RESPONDENT BY : SHRI. B. SAGADEVAN, IRS, JCIT ! ' # $% /DATE OF HEARING : 28-09-2018 &' # $% /DATE OF PRONOUNCEMENT : 28-09-2018 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER: IN THIS MISCELLANEOUS PETITION FILED BY THE ASSES SEE, IT SAYS THAT IMPUGNED ORDER OF THE TRIBUNAL SUFFERS FROM TH E FOLLOWING MISTAKE. M.P.NO. 160/CHNY/2018 :- 2 -: 9. (A) THE PETITION/ASSESSEE HAS NOW REFRAMED THE TABLE AS NOTED BY THE HON'BLE TRIBUNAL IN PARA.3 OF ITS ORDER DATED 10 TH JULY 2018 AND THEREFORE, THERE IS AN ABSOLUTE NEED TO CORRECT THE FINDINGS OF THE TRIBUN AL IN PARA.11& 12 THEREOF SUITABLY SO THAT IT REMOVES THE DOUBT IF ANY IN THE IMPLEMENTING AUTHORITIES WHILE GIVING EFFECT GIVING ORDERS. B) THE ENTIRE ORDER OF THE TRIBUNAL CAME TO BE ISSUED IN THE ABSENCE OF PAPER BOOK AND EFFECTIVE GROUNDS OF DEFENCE AND THEREFORE, IT IS HUMBLY PRAYED THAT THE HON'BLE TRIBUNAL MAY PERUSE THE PAPER BOOK AND THE GROUNDS AFRESH FOR CORRECTING ITS FINDING IN ITS OR DER. C) THE ORDERS OF THE TRIBUNAL WOULD ALSO SET IN A WRON G PRECEDENT THAT UJS.68 OF THE INCOME TAX ACT, 1961, THE DEFINITION OF 'PREVIOUS YEAR' WOULD MEAN EVEN AY- 2003-04 ESPECIALLY WHEN THE CASE OF THE ASSESSEE RE FERS TO THE PREVIOUS YEAR I.E, 2010-11. BESIDES, IT IS F EARED THAT THE LONG ARM OF THE TAX AUTHORITIES WOULD QUOT E THIS ORDERS TO HARASS THE HONEST TAX-PAYERS DUE TO THE MISTAKE OF THE COUNSEL AND AUDITORS AS IT HAPPENED IN THE INSTANT CASE. I OWN THE MISTAKE AND REGRET FOR THE SAME. D) IT IS HUMBLY PRAYED THAT THE FINDINGS OF THE HON'BL E TRIBUNAL MAY BE CORRECTED SUITABLY AS PER THE PAPER BOOK AND THE GROUNDS IN DEFENCE FILED NOW WHICH WOU LD 'ENLIGHTEN THAT THE CASE OF THE PETITIONER IS FULLY DISTINGUISHABLE BOTH ON FACTS AND LAW AND CERTAINLY NOT COVERED AS PER THE CASE LAW OF IN C.PAKIRISAMY RELI ED BY THE REVENUE: 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS TR IBUNAL HAD NOT GRANTED SUFFICIENT TIME TO FILE A PAPER BOOK FOR REBUTTING THE CONTENTION OF THE REVENUE THAT ASSESSEE HAD NO SOUR CE TO EXPLAIN A SUM OF ?1,02,06,929/- OUT OF OPENING CAPITAL BALANC E AND FOR JUSTIFYING M.P.NO. 160/CHNY/2018 :- 3 -: THE SOURCE FOR DRAWINGS AND TAX PAYMENTS.. AS PER THE LD. AUTHORISED REPRESENTATIVE, THE TRIBUNAL PROCEEDED ON A MISTAKE N IMPRESSION THAT THE CAPITAL OF THE ASSESSEE HAD INCREASED FROM ZER O AS ON 31.03.2011 TO ?7,46,48,917/- ON 01.04.2011. ACCORDING TO THE LD. AUTHORISED REPRESENTATIVE, THIS CASE WAS ORIGINALLY HEARD BY THE TRIBUNAL ON 13.03.2018, WHEREIN IT WAS ORALLY OBSERVED BY THE T RIBUNAL THAT THE DEPARTMENT WAS NOT JUSTIFIED IN REOPENING THE ASSES SMENT FOR ASSESSMENT YEAR 2002-03. FURTHER, AS PER THE LD. A UTHORISED REPRESENTATIVE, THIS TRIBUNAL DURING THE HEARING ON 15.03.2018 HAD DIRECTED THE ASSESSEE TO REWORK ENTIRE CAPITAL ACCO UNT BALANCE FROM 2002-2003 TO 2012-2013, SO AS TO MATCH THE GAP IN T HE OPENING BALANCE AS ON 01.04.2001. SUBMISSION OF THE LD. AUT HORISED REPRESENTATIVE WAS THAT THE ASSESSEE HAD WORKED OUT THE OPENING CAPITAL BALANCE FROM 2011-12 TO 2002-03, AND THIS WAS PART OF THE MISCELLANEOUS PETITION. FURTHER, AS PER THE LD. AU THORISED REPRESENTATIVE, OBSERVATION OF THE TRIBUNAL THAT AS SESSEE HAD NO SOURCE FOR MEETING PERSONAL EXPENSES AND PAYMENT OF INCOME TAX DURING EARLIER YEARS WAS ERRONEOUS AND SUCH A VIEW WAS TAKEN SINCE ASSESSEE WAS DISABLED FROM FILING A PAPER BOOK. AS PER THE LD. AUTHORISED REPRESENTATIVE, IF ASSESSEE WAS GIVEN AN CHANCE TO FILE A PAPER BOOK, IT WOULD SHOW THAT ASSESSEE HAD SUFFICI ENT SOURCE FOR MEETING PERSONAL EXPENSES AND PAYMENT OF INCOME TAX FOR EARLIER M.P.NO. 160/CHNY/2018 :- 4 -: YEARS. LD. AUTHORISED REPRESENTATIVE ALSO ENDEAVOR ED TO DISTINGUISH THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF C . PACKIRISAMY VS. ACIT, 315 ITR 293 RELIED ON BY THE TRIBUNAL. ACCORDING TO HIM, THE SAID CASE WAS AN EX-PARTE ORD ER AND IT WAS IN RELATION TO THE ASSESSMENT OF A LIQUOR TRADER WHO H AD FILED BUNCHED RETURNS FOR ASSESSMENT YEAR 1996-97 TO ASSESSMENT Y EAR 2001-02. AS PER THE LD. AUTHORISED REPRESENTATIVE, IMPUGNED ORD ER OF THE TRIBUNAL WOULD SET A WRONG PRECEDENT AND HENCE IT REQUIRED C ORRECTION FOR RECTIFYING THE MISTAKES. 3. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE SUBMIT TED THAT ASSESSEE IN THE GUISE OF A MISCELLANEOUS PETITION W AS SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL. ACCORDING TO THE LD. DEPARTMENTAL REPRESENTATIVE, THE FINDINGS OF THE TRIBUNAL COULD NOT BE FAULTED BASED ON MATERIALS AVAILABLE ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDER. AS FOR THE FIRST CONTENTION OF THE ASSESSEE THAT IT OUGHT HAVE BEEN GIVEN SUFFICIENT TIME FOR FILING A PAPER BOOK, WE FIND THAT THE CASE WAS POSTED FOR HEARING ON 17.08.2017, THEN IT WAS ADJOURNED TO 01.11.2017 ON THE REQUEST OF THE LD. COUNSEL FOR TH E ASSESSEE. ON 01.11.2017, IT WAS AGAIN ADJOURNED TO 17.01.2018 ON THE REQUEST OF M.P.NO. 160/CHNY/2018 :- 5 -: ASSESSEES REPRESENTATIVE. IT IS TRUE THAT THE CASE WAS HEARD BY A BENCH ON 13.03.2018. HOWEVER ON THE VERY SAME DAY, AS PER THE ORDER SHEET ENTRY, THE CASE WAS REPOSTED FOR HEARI NG ON 15.03.2018 SINCE IT REQUIRED CERTAIN CLARIFICATION. ON 15.03. 2018, WHEN IT WAS TAKEN UP THERE WAS A REQUEST FROM THE COUNSEL OF THE ASSESSEE FOR AN ADJOURNMENT WHICH WAS GRANTED. ON 16.05.2018 ALSO, ASSESSEES COUNSEL REQUESTED AN ADJOURNMENT. THE CASE WAS FIN ALLY HEARD ON 10.07.2018 AND ORDER WAS PRONOUNCED ON THE VERY SAM E DAY. THUS, IN OUR OPINION, THE ASSESSEE HAD AMPLE OPPORTUNITY TO FILE ANY PAPER BOOK TO SUPPORT ITS CONTENTIONS THAT PERSONAL EXPEN SES AND TAX PAYMENT FOR EARLIER YEARS HAD EXPLAINABLE SOURCE AV AILABLE WITH IT. 5. IN ANY CASE, WHAT THE ASSESSEE CLAIMS TO BE A REWOR KING OF THE OPENING CAPITAL AS ON 01.04.2011, IN THE MISCEL LANEOUS PETITION IS THE VERY SAME TABLE WHICH APPEAR AT PARA NO.3 OF TH E TRIBUNAL ORDER AND PAGE NO.2 OF THE ASSESSMENT ORDER. THERE IS NO THING NEW IN THE TABLE AT ALL. THE FINDING OF THE TRIBUNAL WAS THAT IF TAX PAYMENTS AND PERSONAL DRAWINGS FOR EARLIER YEARS WERE ALSO CON SIDERED, THE OPENING CAPITAL AS ON 01.04.2011 WOULD STILL BE LOWER THAN WHAT WAS CLAIMED BY THE ASSESSEE. IN OTHER WORDS, THE TRIBUNAL CLEA RLY REACHED AN OPINION THAT LD. ASSESSING OFFICER WAS FAIR ENOUGH TO LIMIT THE ADDITION TO THE DEFICIT IN OPENING CAPITAL THAT ASSESSEE COU LD NOT EXPLAIN. IF M.P.NO. 160/CHNY/2018 :- 6 -: PERSONAL EXPENSES AND TAX PAYMENTS FOR EARLIER YEAR S WERE ALSO CONSIDERED, THEN DEFINITELY THE DEFICIT WOULD HAVE BEEN MUCH HIGHER. OBSERVATION OF THE ASSESSEE THAT THIS TRIBUNAL HAD SET A WRONG PRECEDENT IN EXTENDING THE MEANING OF PREVIOUS YEAR IS DUE TO NON APPRECIATION OF FACTS AND INABILITY OF THE ASSESSEE TO EXPLAIN THE DEFICIENCY OF THE CAPITAL. 6. COMING TO THE CONTENTION OF THE ASSESSEE THAT THIS TRIBUNAL HAD ERRONEOUSLY CONSIDERED NIL AS CLOSING STOC K AS ON 31.03.2011, OBSERVATION OF THE TRIBUNAL WAS THAT ASSESSEE HAD IN ITS OWN RETURN FOR IMMEDIATELY PRECEDING ASSESSMENT YEAR VIZ 2011- 12 SHOWN THE CAPITAL AS NIL. LD. DEPARTMENTAL REPRESENTATIVE HA D POINTED OUT DURING THE COURSE OF HEARING THAT RETURN FOR ASSESSMENT YEAR 2011-12 INCLUDED THEREIN A SCHEDULE FOR SHOWING THE CAPIT AL AND THIS WAS SHOWN BY THE ASSESSEE AS NIL. LD. ASSESSING OFFICER COULD HAVE VERY WELL MADE AN ADDITION ?7,46,48,917/- BUT GAVE A LO NG ROPE TO THE ASSESSEE BY RESTRICTING HIMSELF TO A MUCH LOWER FIG URE. AS FOR THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF C . PACKIRISAMY (SUPRA) THE DISTINGUISHABLE FEATURES PROJECTED BY THE ASSESSEE ARE NOT RELEVANT AT ALL. EVEN WITHOUT THE AID OF THE SAID JUDGMENT, THE ADDITION IN OUR OPINION WAS RIGHTLY DONE BY THE LD. ASSESSING OFFICER. AS NOTED BY THE LD. DEPARTMENTAL REPRESENTATIVE, IN M.P.NO. 160/CHNY/2018 :- 7 -: THE GUISE OF A MISCELLANEOUS PETITION ASSESSEE IS ONLY SEEKING REVISION OF THE ORDER OF THE TRIBUNAL. THIS TRIBUNAL HAS NO POWER FOR REVIEW U/S.254(2) OF THE ACT. IN TAKING THIS VIEW, WE ARE FORTIFIED BY THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE O F EXPRESS NEWSPAPERS LTD VS. DCIT (2010) 320 ITR 0012. FOR TH E AFORESAID REASONS, WE DO NOT FIND ANY MERIT IN THIS MISCELLAN EOUS PETITION. 7. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 28 TH DAY OF SEPTEMBER, 2018, AT CHENNAI. SD/ - ( ) (GEORGE MATHAN) /JUDICIAL MEMBER SD/ - ( . ! ' ) (ABRAHAM P. GEORGE) $ % / ACCOUNTANT MEMBER ) ' / CHENNAI * / DATED: 28 TH SEPTEMBER, 2018. KV + # ,$- . / . $ / COPY TO: 1 . PETITIONER 3. ! 7$ ( ) / CIT(A) 5. .:; ,$< / DR 2. ,=> / RESPONDENT 4. ! 7$ / CIT 6. ;? @' / GF