Shri S. Krishna Kumar, CHENNAI V. ITO, CHENNAI

MA 164/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1248 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 06-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2013
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: S SRIDHAR
• Keywords: Rectification of order; Principle of natural justice; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M . P . NO. 1 64 /MDS/201 3 ( IN ITA NO. 193/MDS/2013 ) ASSESSMENT YEAR : 2009-10 SHRI S. KRISHNA KUMAR, NO.6, EAST SPURTANK ROAD, CHETPET, CHENNAI 600 031. [PAN: AFDPK 4054 N] (PETITIONER) VS THE INCOME TAX OFFICER, BUSINESS WARD-XV(4), CHENNAI (RESPONDENT) PETITIONER BY : SHRI S. SRIDHAR, ADVOCATE RESPONDENT BY : SHRI S. DAS GUPTA, JCIT DATE OF HEARING : 06-12-2013 DATE OF PRONOUNCEMENT : 16-12-2013 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE MISCELLANEOUS PETITION HAS BEEN FILED BY THE A SSESSEE FOR RECTIFICATION OF MISTAKE IN THE ORDER OF THE TR IBUNAL DATED 11-09-2013 IN THE APPEAL FILED BY THE ASSESSEE. M.P. NO. 164/MDS/2013 :- 2 -: 2. IN APPEAL, THE ASSESSEE HAD IMPUGNED THE ORDER O F CIT(APPEALS)-XII, CHENNAI DATED 19-12-2012. THE TR IBUNAL VIDE ORDER DATED 11-09-2013 HAD UPHELD THE FINDINGS OF T HE CIT(APPEALS) AND DISMISSED THE APPEAL OF THE ASSESS EE ON MERITS. IN THE PRESENT MISCELLANEOUS PETITION, THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS NOT TAKEN INTO CONSIDERATION, THE ALTERNATE SUB MISSION MADE BY HIM FOR SUSTAINING THE ADDITION TO THE EXTENT OF PEAK CREDIT IN THE BANK ACCOUNTS OF THE ASSESSEE. 3. ON THE OTHER HAND, THE LD.DR HAS VEHEMENTLY OPPO SED THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE AND SU BMITTED THAT THE ORDER OF THE TRIBUNAL IS WELL REASONED AND REQU IRES NO INTERFERENCE. THERE IS NO MISTAKE AS POINTED OUT B Y THE LD. COUNSEL OF THE ASSESSEE. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF BOTH THE SIDES. THE ASSESSEE IN HIS APPEAL HAD TAKEN THE FOLLOWING GROUNDS: M.P. NO. 164/MDS/2013 :- 3 -: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) XII, CHENNAI-600 034 DATED 19-12-2012 IN ITA NO.419 /11-12 FOR THE ABOVE MENTIONED ASSESSMENT YEAR IS CONTRARY TO LAW, FACTS, AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE CIT(APPEALS) ERRED IN CONFIRMING THE ASSESSM ENT OF ` 29,60,430/- BEING THE CASH DEPOSITS IN THE BANK ACC OUNT ON VARIOUS DATES AS UNACCOUNTED IN THE COMPUTATION OF TAXABLE TOTAL INCOME WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 3. THE CIT(APPEALS) FAILED TO APPRECIATE THAT HAVIN G ESTABLISHED THE SOURCE FOR THE SAID CASH DEPOSITS O N VARIOUS DATES FROM THE AGENTS OF THE FOREIGN BUYERS, THE SU STENANCE OF THE ASSESSMENT OF THE SAID AMOUNT WAS WRONG, INCORR ECT, UNJUSTIFIED, ERRONEOUS AND NOT SUSTAINABLE BOTH THE FACTS AND IN LAW. 4. THE CIT(APPEALS) FAILED TO APPRECIATE THAT THERE WAS NO SHIFT IN STAND IN EXPLAINING THE SOURCE FOR THE CAS H DEPOSITS AND OUGHT TO HAVE APPRECIATED THAT THE RELEVANT FAC TS WERE BROUGHT TO HIS NOTICE FOR CORRECT AND FOR PROPER AP PRECIATION WITH REGARD TO THE WRONG ADDITION MADE BY THE ASSES SING OFFICER IN THE COMPUTATION OF TAXABLE TOTAL INCOME. 5. THE CIT(APPEALS) FAILED TO APPRECIATE THAT THE A PPEAL PROCEEDINGS BEFORE HIM WAS ONLY CONTINUATION OF THE ASSESSMENT PROCEEDINGS AND OUGHT TO HAVE APPRECIATE D THAT NON CONSIDERATION OF THE CORRECT FACTS WOULD VITIAT E HIS ACTION IN THIS REGARD. M.P. NO. 164/MDS/2013 :- 4 -: 6. THE CIT(APPEALS) FAILED TO APPRECIATE THAT THE E XPLANATION OFFERED FOR THE SOURCE FOR THE CASH DEPOSITS WAS FU RTHER FORTIFIED BY THE COMMERCIAL CONSIDERATION INTERWINE D WITH THE BUSINESS OF THE EXPORT OF GARMENTS TO SRI LANKA. 7. THE CIT(APPEALS) FAILED TO APPRECIATE THAT HAVIN G NOT CONDUCTED NECESSARY CROSS VERIFICATION WITH REFEREN CE TO THE FACTS FURNISHED BY THE APPELLANT IN THE FIRST APPEL LATE PROCEEDINGS, THE SUSTENANCE OF THE ADDITION ON TECH NICAL GROUNDS WAS WRONG, INCORRECT, UNJUSTIFIED, ERRONEOU S AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. 8. THE CIT(APPEALS) FAILED TO APPRECIATE THAT THERE WAS NO PROPER OPPORTUNITY GIVEN BEFORE PASSING THE IMPUGNE D ORDER AND ANY ORDER PASSED IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE IS NULLITY IN LAW. 9. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUNDS/ARGUMENTS AT THE TIME OF HEARING. 5. DURING THE COURSE OF ARGUMENTS, THE LD. COUNSEL FOR THE ASSESSEE HAD MADE ALTERNATE SUBMISSIONS FOR SUSTAIN ING THE ADDITION TO THE EXTENT OF PEAK CREDIT ALTHOUGH NO S UCH GROUND WAS RAISED IN THE GROUNDS OF APPEAL. WHILE ADJUDICATIN G THE APPEAL OF THE ASSESSEE, ALL THE SUBMISSIONS MADE BY THE LD. C OUNSEL FOR THE ASSESSEE WERE TAKEN INTO CONSIDERATION AND THEREAFT ER, THE ORDER WAS PASSED. THE BENCH WAS OF CONSIDERED OPINION TH AT IN THE M.P. NO. 164/MDS/2013 :- 5 -: FACTS AND CIRCUMSTANCES OF THE CASE, THE PRINCIPLE OF PEAK CREDIT CANNOT BE FOLLOWED AND, AS SUCH THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE WERE NOT ACCEPTED. THE CO UNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO SHOW ANY MISTAKE APPA RENT FROM RECORD WHICH REQUIRES RECTIFICATION UNDER THE PROVI SIONS OF SECTION 254(2) OF THE INCOME TAX ACT. 6. WE ARE OF THE VIEW THAT BY WAY OF THIS PRESENT MISCELLANEOUS PETITION, THE ASSESSEE IS SEEKING REV IEW OF THE ORDER DATED 11-09-2013 WHICH IS BEYOND THE SCOPE OF SECTION 254(2). THERE IS NO MERIT IN THE MISCELLANEOUS PET ITION OF THE ASSESSEE AND THE SAME IS DISMISSED BEING DEVOID OF MERIT. ORDER PRONOUNCED ON MONDAY, THE 16 TH DECEMBER, 2013 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (VIKAS AWASTHY) JUDICIAL MEMBER DATED: 16 TH DECEMBER, 2013 TNMM COPY TO: (1) PETITIONER (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.