G.Balakrishnan, Erode V. ITO, Erode

MA 79/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4462 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2016
• Court: TRIBUNAL
• Department Lawyers: MURUGABOOPATHI ADDITIONAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Principle of natural justice

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , ! ' ! # . $% & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P.NO.79/MDS./2016 ( I.T.A.NO.2975/MDS./2014 ASSESSMENT YEAR : 2010-11) MR. G.BALAKRISHNAN , 102,JINNAH STREET, ERODE 638 001. VS. THE INCOME-TAX OFFICER, WARD-I(2), EODE. [PAN AGDPB 6110 B ] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE /RESPONDENT BY : MR.MURUGABOOPATHI, ADDITIONAL CIT DR / DATE OF HEARING : 17 - 06 - 201 6 / DATE OF PRONOUNCEMENT : 06 - 07 - 2016 - / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEKS RECTIFICATION OF THE ORDER OF THE TRIBUNAL IN ITA N O.2975/MDS./2014 DATED 11.03.2016 FOR ASSESSMENT YEAR 2010-11. MP NO.79/MDS./2016 :- 2 -: 2. THE LD.A.R SUBMITTED THAT ASSESSEE RAISED THE S PECIFIC GROUND AS GROUND NO.3 IS AS FOLLOWS:- 3. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE PLEA S OF THE APPELLANT WITH REGARD TO REJECTION OF FORM 3CB AND FORM 3CD BY AO, WITHOUT ASSIGNING ANY REASON, WHICH RESU LTS IN THE RECASTING OF THE TRADING & P&L A/C BY THE AO, W HICH, IN TURN, RESULTED IN THE NON-CONSIDERATION OF BAD DEBT S AND COMPENSATION TO EMPLOYEE, ETC. (COPY OF THE TRADING & P&L A/C, FORMS 3CB CD ARE ENCLOSED). LD.A.R SUBMITTED THAT THE TRIBUNAL FAILED TO ADJUDI CATE THIS GROUND AND NON-CONSIDERATION OF THIS GROUND AMOUNTS TO MISTAKE APPARENT FROM RECORD AND REQUIRES RECTIFICATION. 3. ON THE OTHER HAND, LD.D.R SUBMITTED THAT THE TR IBUNAL CONSIDERED ALL THE FACTS AND CIRCUMSTANCES OF THE C ASE AND DECIDED THE ISSUE IN ACCORDANCE WITH LAW AND THERE IS NO MISTAK E APPARENT FROM RECORD. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THE ASSESSEE RAISED THE FOLLOWI NG GROUNDS:- 1. THE ORDER OF THE LD.CIT(A) IS ERRONEOUS IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE GROUN DS OF APPEAL IN PROPER PERSPECTIVE. MP NO.79/MDS./2016 :- 3 -: 3. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE PLEAS OF THE APPELLANT WITH REGARD TO REJECTION OF FORM 3CB AND FORM 3CD BY AO, WITHOUT ASSIGNING ANY REASON, WHICH RESU LTS IN THE RECASTING OF THE TRADING & P&L A/C BY THE AO, W HICH, IN TURN, RESULTED IN THE NON-CONSIDERATION OF BAD DEBT S AND COMPENSATION TO EMPLOYEE, ETC. (COPY OF THE TRADING & P&L A/C, FORMS 3CB CD ARE ENCLOSED) 4. THE LD.CIT(A) ERRED IN FIXING THE GROSS PROFIT AT 6%, THEREBY ACCEPTING THE ACTION OF THE AO WHO RECAST T HE TRADING & PROFIT & LOSS ACCOUNT. 5. THE LD.CIT(A) ERRED IN SUSTAINING THE ADDITION WITHOUT THERE BEING ANY MATERIAL TO SHOW THAT THE SAME BELO NGED TO THE YEAR OF SURVEY, WHEN THE APPELLANT, IN THE STAT EMENT RECORDED DURING SURVEY, HAD CLEARLY MENTIONED THAT THE SAID SUM REPRESENTS DIFFERENCE RELATED TO EARLIER YEARS. 6. THE LD.CIT(A) ERRED IN SUSTAINING THE ADDITION W ITHOUT THERE BEING ANY MATERIAL TO SHOW THAT THE SAME BELO NGED TO THE YEAR OF SURVEY, WHEN THE APPELLANT, IN THE STAT EMENT RECORDED DURING SURVEY, HAD CLEARLY MENTIONED THAT HE HAD BEEN IN THIS BUSINESS FROM THE YEAR 2002. 7. THE LD.CIT(A) ERRED IN SUSTAINING THE ABOVE ADDI TION, WHILE THE FACT THAT THE TURNOVER OF THE BUSINESS BY THE MP NO.79/MDS./2016 :- 4 -: APPELLANT PER MONTH IS AROUND 90,00,000/-, AS FOUND IN THE ASSESSMENT ORDER. 8. THE LD.CIT(A) ERRED IN SUSTAINING THE ABOVE ADD ITION WITHOUT CONSIDERING THE FACT THAT THE APPELLANT HA D STATED IN THE STATEMENT RECORDED DURING SURVEY THAT HE HAD BE EN DOING BUSINESS IN THIS ADDRESS FROM THE YEAR 2007. 9. THE LD.CIT(A) ERRED IN SUSTAINING THE ABOVE ADDI TION WITHOUT CONSIDERING THE EXPLANATION BY THE APPELLA NT THAT IT REPRESENTED PAST SAVINGS. DURING THE COURSE OF HEARING, THE LD.A.R HAS NOT PR ESSED THE GROUND NOS.1, 2, 7 & 9 RAISED IN THIS APPEAL. THEREAFTER, THE TRIBUNAL HAS CONSIDERED AND GIVEN THE FINDINGS. 4. WITH REFERENCE TO GROUND NO.3 WHICH WAS NOT SPE CIFICALLY ADJUDICATED, WE FIND THAT GROUND NO.4 IS WITH REGAR D TO ASSESSMENT OF INCOME OF ASSESSEE BY TAKING GROSS PROFIT AT 6% AND THIS GROUND WAS ADJUDICATED BY THIS TRIBUNAL AGAINST THE ASSESSEE B Y HOLDING THAT THE ACTION OF THE CIT(A) IN DETERMINING THE PROFIT IS J USTIFIED, WHICH CAN BE READ FROM PARA-4 OF THE TRIBUNALS ORDER, WHICH REA DS AS FOLLOWS:- 4. THE AO WHILE FRAMING THE ASSESSMENT RECASTED THE PROFIT AND LOSS ACCOUNT THEREBY RECOMPUTED THE INCO ME OF ASSESSEE FROM THE BUSINESS AT ` 7,68,383/- AS AGAINST DECLARED BY THE ASSESSEE AT ` 7,68,691/-. CONSIDERING THE NATURE OF BUSINESS OF THE ASSESSEE, THE CIT(A) HAS GIVEN A DIRECTION THAT GROSS PROFIT RATE TO BE CONSIDERED 6 % OF THE TOTAL SALES. BEING SO, WE DO NOT FIND ANY INFIRMIT Y IN THE MP NO.79/MDS./2016 :- 5 -: ORDER OF THE CIT(A). THE SAME IS CONFIRMED AND THI S GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. NOW, THE CONTENTION OF THE LD.A.R IS THAT GROUND NO .3 IS WITH REGARD TO GRIEVANCE OF THE ASSESSEE IN RECASTING THE TRADING & PROFIT & LOSS ACCOUNT. THIS GROUND IS AKIN TO THE GROUND NO.4. W HEN THE TRIBUNAL SAID THAT ESTIMATE OF INCOME OF ASSESSEE IS JUSTIFI ED WHILE ADJUDICATING THE GROUND NO.4, IT AMOUNTS TO ADJUDICATION OF THE GROUND NO.3 ITSELF AND THE GROUND NO.3 DOES NOT REQUIRE INDEPENDENT AD JUDICATION. IN OUR OPINION, THE ORDER OF THE TRIBUNAL NEED NOT BE READ SENTENCE BY SENTENCE OR WORD BY WORD. IT IS SELL SETTLED LAW T HAT THE TRIBUNAL IS THE FINAL FACT FINDING BODY. THE FINDINGS OF THE TRIBUN AL ARE NOT LIABLE TO BE INTERFERED WITH UNLESS THE TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVANT MATERIAL OR HAS FAILED TO TAKE INTO CONS IDERATION ANY RELEVANT MATERIAL OR THE CONCLUSION ARRIVED AT BY THE TRIBUN AL IS PERVERSE IN THE SENSE THAT NO REASONABLE PERSON, ON THE BASIS OF TH E FACTS BEFORE THE TRIBUNAL, COULD HAVE COME TO THE CONCLUSION TO WHIC H IT HAS COME. IN THE PRESENT CASE, THE TRIBUNAL HAS TAKEN INTO ALL T HE RELEVANT CIRCUMSTANCES WHICH ARE APPARENT FROM RECORD AND WH ICH ARE REFERRED BY LD.A.R. IT HAS NOT TAKEN INTO AGAIN ANY MATERIA L WHICH COULD BE SAID TO BE RELEVANT TO THE CONCLUSION ARRIVED AT. IN CO NSIDERING, WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL HAD ANY EVIDENCE AND HAD NOT RELIED ON IRRELEVANT OR PARTLY IRRELEVANT MATERIALS MP NO.79/MDS./2016 :- 6 -: WHILE DECIDING THE ISSUE BEFORE IT. ACCORDINGLY, TH E MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JULY, 2016, AT CHENNAI. SD/ - SD/ - . ! '# $ ( DUVVURU RL REDDY ) ) & / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER %& / CHENNAI '() / DATED: 06 TH JULY, 2016 K S SUNDARAM (*++,-.+/. / COPY TO: + 1 . / APPELLANT 3. + 0+$ / CIT(A) 5. .12+,,3 / DR 2. / RESPONDENT 4. + 0 / CIT 6. 2#4+5 / GF