S.J.Suryah, CHENNAI V. ITO, CHENNAI

MA 72/CHNY/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5753 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-07-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 28-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: HEMALATHA
• Section: 69

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M .P. NO . 72 / CHNY /2017 [IN I.T.A. NO. 1863 / CHNY /20 1 4 ] ASSESSMENT YEAR: 20 0 2 - 0 3 SHRI S.J. SURYAH, FLAT NO. D - 1, JAMAL APARTMENTS, NO. 18, NEELAKANTA MEHTA STREET, T. NAGAR, CHENNAI 600 017 . [PAN: ALYPS3012R] VS. THE INCOME TAX OFFIC ER, MEDIA WARD III, CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MS. HEMALATHA, C.A. / RESPONDENT BY : SHRI N. MADHAVAN, ADDL. CIT / DATE OF HEARING : 09.03.2018 / DATE OF P RONOUNCEMENT : 09. 0 3 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO MODIFY/RECTIFY THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 1863 /MDS/201 4 DATED 27 .0 7 .201 6 . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WERE TWO ISSUES BEFORE THE TRIBUNAL , ONE OF WHICH, THE ADDITION OF .30 LAKHS MADE UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] FOR CASH DEPOSIT IN BANK AND THE OTHER WAS ADDITION OF .34,1 3,386/ - , WHICH HAD NOT M.P. NO. 7 2 /CHNY/2017 2 ACCRUED AS INCOME OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL, WITH RESPECT TO THE FIRST ISSUE DID NOT CONSIDER THE SUBMISSIONS MADE BY HIM AND IN THE SECOND ADDITION, THE TRIBUNAL DID NOT PROPERLY A DJUDICATE THE ISSUE. AS PER THE LD. AR, A SUM OF .30 LAKHS WAS RECEIVED BY THE ASSESSEE FROM INDIRA PRODUCTIONS PVT. LTD. THROUGH SHRI PRASAD POTLURI AND THE ASSESSEE HAD FILED EVIDENCE TO PROVE SUCH RECEIPT. VIS - - VIS SECOND ADDITION, AS PER THE LD. AR, OUT OF SUM OF .1.50 CRORES, THE CONSIDERATION FO R HINDI VERSION OF MOVIE KUSHI , WHAT WAS RECEIVED BY THE ASSESSEE WAS .1,15,96,614/ - . AS PER THE LD. AR, THE BALANCE SUM OF .34,13,386/ - WAS OUTSTANDING AND NOT PAID TO THE ASSESSEE. THUS, ACCORDING TO THE LD. AR, THE CONTENTION RAISED BY THE ASSESSEE WAS NOT CONSIDERED BY THE TRIBUNAL. 2. PER CONTRA, THE LD. DR SUBMITTED THAT THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WARRANTING INTERFERENCE UNDER SECTION 254(2) OF THE ACT. 3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE ORDER OF THE TR IBUNAL. WITH REGARD TO THE FIRST ISSUE, W HAT WAS HELD BY THE TRIBUNAL AT PARA 2.3 OF ITS ORDER IS REPRODUCED HEREIN BELOW: 2.3 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, AT THE T IME OF ASSESSMENT, INDIRA PRODUCTION PVT. LTD. HAS DIRECTLY WRITTEN A LETTER DATED NIL TO THE ADIT ENCLOSING STATEMENT OF ACCOUNT THAT AN AMOUNT OF .30 LAKHS PASSED ON TO THE ASSESSEE PAID DIRECTLY THROUGH SHRI PRASAD POTLURI TO THE ASSESSEE. HOWEVER, THE RE IS NO EVIDENCE TO SUGGEST UNDER WHAT CIRCUMSTANCES SHRI PRASAD POTLURI HAS PAID THIS AMOUNT TO THE ASSESSEE. THERE IS NO COUNTER M.P. NO. 7 2 /CHNY/2017 3 CONFIRMATION FROM SHRI PRASAD POTLURI. HAD IT BEEN GENUINE TRANSACTION, THE ASSESSEE SHOULD HAVE BEEN EXPLAINED THE ENTIRE T RANSACTION BETWEEN THE ASSESSEE AND SHRI PRASAD POTLURI AND THE CIRCUMSTANCES UNDER WHICH IT WAS PAID BY SHRI PRASAD POTLURI TO THE ASSESSEE ON BEHALF OF INDIRA PRODUCTION PVT. LTD. FURTHER, THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT REQUESTED I NDIRA PRODUCTION PVT. LTD. FOR THE PERSONAL APPEARANCE AND EXPLAINS IT. BUT, INSTEAD OF PERSONAL APPEARANCE BEFORE THE ASSESSING AUTHORITY, THEY OPTED TO SEND THE STATEMENT OF ACCOUNT, WHICH DOES NOT EXPLAIN ITSELF THE NATURE OF TRANSACTION BETWEEN THE PAR TIES. IN OUR OPINION, AS RIGHTLY POINTED OUT BY THE LD. DR, THE EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE, THE ASSESSEE HAS NOT DISCHARGED HIS BURDEN CAST UPON HIM TO SUBSTANTIATE THE SOURCE AND GENUINENESS OF THE TRANSACTION. IN THESE CIRCUMSTANCES, IT I S APPROPRIATE TO HOLD THAT THE DEPOSIT OF .30 LAKHS IN THE DENA BANK ACCOUNT HAS NOT PROPERLY EXPLAINED. THEREFORE, THE PROVISIONS OF SECTION 69 OF THE ACT WAS RIGHTLY INVOKED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). THUS, WE FIND NO INFI RMITY IN THE ORDERS OF AUTHORITIES BELOW ON THIS ISSUE AND ACCORDINGLY, THE SAME IS CONFIRMED. 3.1 WITH REGARD TO SECOND ISSUE, WHAT WAS HELD BY THE TRIBUNAL AT PARA 3.4 IS REPRODUCED AS UNDER: 3.4 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON REC ORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE CONTENTION OF THE LD. AR IS THAT THE CORRESPONDENCE BETWEEN SHRI BONNY KAPOOR ANDF THE DEPARTMENT WAS NOT PUT TO THE ASSESSEE FOR HIS COMMENTS AND IT CANNOT BE RELIED UPON. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THERE IS AN AGREEMENT FOR REMUNERATION TO BE PAYABLE BY SHRI BONNY KAPOOR TO THE ASSESSEE FOR DIRECTING THE FILM KUSHI AND THE SAME WAS CONSIDERED AS INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2002 - 03 AS THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING. ADMITTEDLY, IN THIS CASE, THE ASSESSEE HAS FILED A STATEMENT BEFORE US CONFI RMING THE RECEIPT OF INCOME FROM NARASIMHA ENTERPRISES OWNED BY SHRI BONNY KAPOOR FOR .1,15,96,414/ - . IN ADDITION TO THIS, IT IS TO BE NOTED THAT THE ASSESSEE FILED REVISED STATEMENT OF INCOME BEFORE THE ASSESSING OFFICER ON 28.03.2005 AT .1,27,28,414/ - . THE ASSESSING OFFICER HAS NOT CONSIDERED THIS AMOUNT. IN OUR OPINION, THE AMOUNT RETURNED BY THE ASSESSEE IN THE REVISED COMPUTATION OF STATEMENT IS TO BE ACCEPTED AT .1,27,28,414/ - SUBJECT TO OUR FINDING IN PARA 3.5 HEREIN BELOW AND INSTEAD OF MAKING AD DITION OF .1.00 CRORE BY OVERLOOKING THIS REVISED STATEMENT. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO CONSIDER THE REVISED COMPUTATION OF INCOME FOR THE ASSESSMENT YEAR 2002 - 03 WITH REFERENCE TO THE INCOME AT .1,27,28,414/ - SUBJECT TO OUR FINDING IN PARA 3.5 HEREIN BELOW. IN OTHER WORDS, THE ASSESSEE IS NOT ENTITLED FOR LOSS OF .11 LAKHS IN RESPECT OF KUSHI TELUGU MOVIE. M.P. NO. 7 2 /CHNY/2017 4 4. WE FIND THAT THE CONTENTION OF THE ASSESSEE HAS BEEN PROPERLY CONSIDERED ON BOTH THE ISSUES. THERE IS A CLEAR FINDING T HAT NO EVIDENCE WAS PRODUCED TO PROVE THE CIRCUMSTANCES UNDER WHICH SHRI PRASAD POTLURI HAS PAID THE ASSESSEE A SUM OF .30 LAKHS. VIS - - VIS SECOND ISSUE, THERE IS A CLEAR FINDING THAT THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND HENCE WA S OBLIGE TO ACCOUNT FOR .1.50 CRORES. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, W E DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL OF THE NATURE MENTIONED BY THE ASSESSEE MUCH LESS ANY MISTAKE WHICH IS APPARENT ON THE RECORD. 5 . IN THE RESULT, THE MP FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 09 TH MARCH, 201 8 AT CHENNAI. SD/ - SD/ - ( ABRAHAM P. GEORGE ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 09 .0 3 . 201 8 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.