Sunil Balasubramaniam Shankar , CHENNAI V. ITO Non Corporate Ward 18(3) , CHENNAI

MA 230/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2771 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M SUBASHRI
• Assessee Lawyers: S SATYANARAYANA
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 143(3); 131

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 230/CHNY/2018 [IN I.T.A.NO.1682/CHNY/2017] / ASSESSMENT YEAR :2009-10 SHRI SUNIL BALASUBRAMANIAM SHANKAR, NO. 6/45, 4 TH STREET, AVVAI THIRU NAGAR, KOYAMBEDU, CHENNAI 600 107. [PAN:BBFPS4197B] VS. THE INCOME TAX OFFICER, NON CORPORATE WARD 18(3), CHENNAI 600 034. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SATYANARAYANA, ADVOCATE / RESPONDENT BY : MS. M. SUBASHRI, JCIT / DATE OF HEARING : 01.02.2019 /DATE OF PRONOUNCEMENT : 27.02.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO REVIEW THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 1682/CHNY/2017 DATED16.08.2018 RELEVANT TO THE ASSESSMENT YEAR 2009-2010. BY REFERRING TO THE PETITION, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS FAILED TO PROVIDE STATEMENT OF MR. NEELAMEGAN AND OPPORTUNITY TO CROSS EXAMINE. THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE FAILURE ON THE PART OF THE ASSESSING OFFICER AMOUNTS TO DENIAL OF PRINCIPLES OF M.P. NO.230/CHNY/18 2 NATURAL JUSTICE AND FOR THAT REASON OUGHT TO HAVE SET ASIDE THE ASSESSMENT ORDER. FURTHER, IT WAS SUBMITTED THAT THE DECLARATION CUM AFFIDAVIT PROVIDED BY MR. NEELAMEGAN FURNISHED BEFORE THE TRIBUNAL CONTRACTS THE FINDINGS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, WHICH WAS RELIED ON BY THE LD. CIT(A) IN CONFIRMING THE AOS ORDER AND PRAYED FOR RE-ADJUDICATING THE ISSUE UNDER APPEAL BY AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. PER CONTRA, AFTER CAREFULLY GOING THROUGH THE FACTS AND CIRCUMSTANCES, MATERIALS AVAILABLE ON RECORD, THE TRIBUNAL HAS ADJUDICATED THE ISSUE RAISED IN THE APPEAL AND THUS, THERE IS NO MISTAKE APPARENT ON RECORD. THE LD. DR ALSO SUBMITTED THAT REVIEW OF THE ORDER OF THE TRIBUNAL IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. 3. WE HAVE HEARD BOTH THE SIDES, PERUSED THE ORDER OF THE TRIBUNAL. AGAINST SECOND ROUND OF LITIGATION, THE TRIBUNAL ADJUDICATED THE ISSUE AND PASSED THE IMPUGNED ORDER DATED 16.08.2018, WHEREIN, THE IMPUGNED ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT DATED 20.03.2015, IN WHICH, WHAT STATEMENT RECORDED UNDER SECTION 131 OF THE ACT FROM SHRI NEELAMEGAN WAS CLEARED MENTIONED BY THE ASSESSING OFFICER. FOR INSTANT REFERENCE, THE SAME IS REPRODUCED HEREUNDER: . A SWORN STATEMENT WAS RECORDED FROM MR. NEELAMEGAN, WHEREIN HE INSISTED THAT NO CREDIT CARDS CAN BE USED BY A THIRD PARTY AS SIGNATURE OF THE CARD HOLDER IS MANDATORY WHILE USING CREDIT CARD. HENCE HE OBJECTED HAVING USED THE CREDIT CARD OF THE ASSESSEE AND M.P. NO.230/CHNY/18 3 ALSO EMPHASIZED THAT IT IS NOT ALL POSSIBLE TO USE THE CREDIT CARD BY A THIRD PARTY. MR. NEELAMEGAN ALSO STATED THAT HE HAS NO IDEA OF FOUR STORES NAMELY: M/S. AAKASH DECORS, M/S. C.R. AGENCIES, M/S. JAYA MEDICALS, M/S. ARUNA PHARMACY, WHERE THE CREDIT CARDS WERE USED. EVERYBODY IS KNOWN TO THE FACT THAT NO CREDIT CARD CAN BE USED BY A THIRD PARTY AS SIGNATURE OF THE CARD HOLDER IS MANDATORY WHILE USING CREDIT CARD IN THE SWIPING MACHINE. SINCE THE ASSESSEE WAS VERY MUCH AWARE OF THE ABOVE FACTS, WHICH WAS ELABORATELY NARRATED IN THE GROUNDS OF APPEAL AS WELL AS WRITTEN SUBMISSIONS FILED BEFORE THIS TRIBUNAL ON 04.06.2018, WE DO NOT FIND ANY MERITS THAT THE ABOVE STATEMENT WARRANTING ANY CROSS EXAMINATION. 4. BY NO STRETCH OF IMAGINATION, IT COULD BE ACCEPTED THAT WITH THE PERMISSION OF THE ASSESSEE, SHRI NEELAMEGAN HAS USED THE CREDIT CARD, BECAUSE, WHILE USING THE CREDIT CARD, THE SIGNATURE OF CARD HOLDER IS ESSENTIAL AND NO EVIDENCE WAS PLACED ON RECORD TO ESTABLISH BY WAY OF PRODUCING COPIES OF SWIPING MACHINE RECEIPTS DULY PUTTING SIGNATURE [FORGERY] OF THE ASSESSEE BY SHRI NEELAMEGAN EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(A) OR EVEN BEFORE THE TRIBUNAL AND MOREOVER, NO SUPPORTING EVIDENCE WAS PLACED ON RECORD ALONG WITH THE DECLARATION CUM AFFIDAVIT FILED BEFORE THE TRIBUNAL ON 20.07.2018 TO AFFIRM THE STATEMENTS MADE IN THE AFFIDAVIT. THUS, THE ASSESSEE HAS NOT ESTABLISHED WITH EVIDENCE THAT SHRI NEELAMEGAN HAS USED THE CREDIT CARD OF THE ASSESSEE. MOREOVER, IT IS CLEAR THAT SHRI NEELAMEGAN HAS DEPOSED WRONG STATEMENT IN THE AFFIDAVIT, WHICH WAS CONTRARY TO THE STATEMENT RECORDED UNDER SECTION 131 OF THE ACT AND M.P. NO.230/CHNY/18 4 THEREFORE, THE TRIBUNAL HAS NOT TAKEN INTO ACCOUNT OF THE SAME IN ITS ORDER DATED 16.08.2018. THUS, WE FIND NO MISTAKE APPARENT ON THE FACE OF THE ORDER PASSED BY THE TRIBUNAL DATED 16.08.2018. HENCE, THE PETITION FILED BY THE ASSESSEE STANDS DISMISSED. 7. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 27 TH FEBRUARY, 2019 AT CHENNAI. SD/ - SD/ - (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 27.02.2019 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.