S.Kothandan, CHENNAI V. ACIT, CHENNAI

MA 89/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6055 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 20-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANAT KUMAR RAHA
• Assessee Lawyers: P RANGA RAMANUJAM
• Keywords: Principle of natural justice; Additional evidence
• Section: 69; 12

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO. 89/MDS/2017 [IN I . T.A. NO. 2276 /MDS/201 5 ] ASSESSMENT YEAR :20 12 - 13 SHRI S. KOTHANDAN, NO. 218, 5 TH STREET, NEHRU NAGAR, ANNANAGAR, CHENNAI 600 0 4 0 . [PAN:A ONPK8106J ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , NON - CORPORATE CIRCLE 7 ( 1 ) , C HENNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI P. RANGA RAMANUJAM , C.A. / RESPONDENT BY : SHRI S ANAT KUMAR RAHA , JCIT / DATE OF HEARING : 05 . 0 1 .201 8 / DATE OF P RONOUNCEMENT : 24 . 0 1 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO RECALL THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 2276/MDS/2015 DATED 0 9 .0 9.2016 REL E VANT TO THE ASSESSMENT YEAR 2012 - 1 3 . BY REFERRING TO THE PETITION, BY REPRODUCING THE LAST LIMB OF PARA 2.4 OF THE ORDER OF THE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE FACTS NARRATED IN THE ORDER OF THE TRIBUNAL ARE WRONG AND THE SAME IS REPRODUCED AS UNDER: M.P. NO . 89 /M/ 17 2 2.4 IMMEDIATELY PRIOR TO THE ISSUE OF CHEQUE TO MR. KUMARAVEL OF .39 LAKHS, THERE WAS A DEPOSIT OF .39,20,000/ - IN THE BANK ACCOUNT OF MR.VINOTH, WHICH CAME FROM M/S. CHANDRAMMA MALAR NILAYAM. AGAINST THE ABOVE FINDINGS, THE LD. COUNSEL HAS SUBMITTED THAT THE CHEQUE, AS MENTIONED IN THE FACTS, DID NOT COME FROM M/S. CHANDRAMMA MALAR NILAYAM, THE PROPRIETARY CONCERN OF THE PETITION. IN FACT THAT M/S. CHANDRAMMA MALAR NILAYAM HAS RECEIVED A CHEQUE FROM SHRI VINOTH THROUGH MR. KUMARAVEL. THUS, THERE IS A FACTUAL ERROR IN THE FACTS OF THE CASE. FURTHER, THE LD. COUNSEL H AS SUBMITTED THAT IN PARA 2.5 OF THE ORDER THE FACTS OF THE CASE MENTIONED AS UNDER: 2.5 IMMEDIATELY PRIOR TO THE ISSUE OF CHEQUE TO MR. KUMARAVEL OF .31 LAKHS, THERE WAS A DEPOSIT OF .36 LAKHS IN THE BANK ACCOUNT OF MR. VENKATTYA WHICH CAME FROM THE SAME PARTY, I.E., M/S. CHANDRAMMA MALAR NILAYAM. MR. VENKATTYA HAD GIVEN BLANK CHEQUES TO MR. KUMARAVEL, AND HE IS NOT AWARE OF THE PARTY M/S. CHANDRAMMA MALAR NILAYAM. AGAINST THE ABOVE FINDINGS, THE LD. COUNSEL HAS SUBMITTED THAT THE CREDIT IN THE VENKATTYA S ACCOUNT DID NOT COME FROM M/S. CHANDRAMMA MALAR NILAYAM, THE PROPRIETARY CONCERN OF THE PETITIONER. IN FACT THAT M/S. CHANDRAMMA MALAR NILAYAM HA S RECEIVED A CHEQUE FROM SHRI NEMLKTTIAH THROUGH MR. KUMARAVEL. THUS, THERE IS A FACTUAL ERROR IN THE FACTS OF THE CASE. BASED ON THE ABOVE INCORRECT FACTS PROJECT AND NON - CONSIDERATION OF RELEVANT FACTS, THE LD. COUNSEL PRAYED THAT THE TRIBUNAL HAS NOT JU STIFIED THE PRESENT PROCEEDINGS IN DECIDING THE APPEAL AGAINST THE ASSESSEE IN AS MUCH AS THE GROUNDS IN GROUND NOS. 2, 3 AND 8 TO 12 WERE COMPLETED MISSED BY THE M.P. NO . 89 /M/ 17 3 BENCH WHILE PASSING THE ORDER AND PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 09.09. 2016 AND RENDER JUSTICE. 2. PER CONTRA, THE LD. DR HAS SUBMITTED THAT AGAINST THE CONFIRMATION OF ADDITION MADE UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT], THE GROUNDS RAISED IN GROUND NOS. 2, 3 AND 8 TO 12 ARE JUST SUPPLEMENTARY GROU NDS, WHICH ARE INTERLINKED WITH THE MAIN GROUND, WHICH REQUIRE NO SEPARATE ADJUDICATION. MOREOVER, IN THIS CASE, THE ASSESSEE HAS FAILED TO PROVE THE CAPACITY OF THE CREDITORS TO ADVANCE MONEY AND GENUINENESS OF THE TRANSACTION AND THUS, THE TRIBUNAL SUSTA INED THE ADDITIONS RELATING TO THE CREDIT FROM SHRI KUMARAVEL AND SHRI PALANI AND PLEADED THAT THE PETITION SHOULD BE DISMISSED AS THERE WAS NO MISTAKE APPARENT ON RECORD . 3. WE HAVE HEARD BOTH SIDES, PERUSED THE ORDER PASSED BY THE TRIBUNAL AND GONE TH ROUGH THE ENTIRE RECORD. THE DISPUTE IN THE MP RELATES TO THE FACTS PERTAINING TO THE CREDITOR SHRI KUMARAVEL ONLY AND NOTHING ELSE. FIRST, WE SHALL TAKE UP THE PRAYER OF THE ASSESSEE THAT THE GROUNDS RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL IN GROU ND NOS. 2, 3 AND 8 TO 12 WERE COMPLETELY MISSED. IN GROUND NO. 2, THE ASSESSEE HAS RAISED THE ISSUE THAT 2. THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT WHERE THE ASSESSING OFFICER RELIED ON THE STATEMENT OF CREDITORS TO MAKE AN ASSESSMENT, THE A O OUGHT TO HAVE AFFORDED AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE THE CREDITORS ON THE PRINCIPLES OF NATURAL JUSTICE. M.P. NO . 89 /M/ 17 4 THE PETITION FOR ADMITTING ADDITIONAL EVIDENCE WAS VERY MUCH ALLOWED BY THE BENCH AT THE TIME OF HEARING OF THE APPEAL OF THE A SSESSEE . THE ASSESSEE HIMSELF FILED THE BANK STATEMENT OF THE CREDITORS BASED ON WHICH THE ASSESSMENT WAS MADE. THE ASSESSEE FILED CONFIRMATION LETTER FROM SHRI KUMARAVEL, WHEREIN , T HE CREDITOR SHRI KUMARAVEL HAS ADVANCED .70.00 LAKHS ON A SINGLE DA Y WITH TWO DIFFERENT SETS OF CHEQUES BEARING NUMBERS 024161 TO 024169 FOR .39.00 LAKHS AND BEARING 047281 TO 047285, 042787 AND 042788 FOR .31.00 LAKHS. WHEN THE DEPARTMENT SUMMONED SHRI KUMARAVEL FOR THE PURPOSE OF IDENTITY, VERACITY AND CREDITWORTHINESS, SHRI KUMARAVEL DID NOT RESPONSE TO THE SUMMONS . NO OTHER MATERIAL WAS RELIED UPON BY THE ASSESSING OFFICER, WHICH REQUIRES CROSS EXAMINATION BY THE ASSESSEE. THE ABOVE GROUND IS NOT AT ALL REQUIRED FOR ADJUDICATION SEPARATELY SINCE THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER AND FILED BY THE ASSESSEE IN THE FORM OF ADDITIONAL EVIDENCES ARE ONE AND THE SAME. IN GROUND NO. 3, THE ASSESSEE HAS RAISED THE ISSUE THAT 3. THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE APPELLANT HAS DISCHARGED THE ONUS BY ESTABLISHING THE GENUINENESS OF THE TRANSACTIONS, CREDIT WORTHINESS AND IDENTITY OF THE CREDITORS. AFTER DETAILED DISCUSSIONS TAKING CUE OF VARIOUS CASE LAW AT PARA 4.4 OF APPELLATE ORDER, THE ASSESSEE FILED A PIECE OF PAPER OF CONFIRMATION IN RESPECT OF LOAN OF .70 LAKHS FROM SHRI KUMARAVEL HAVING GIVEN THE SAID M.P. NO . 89 /M/ 17 5 AMOUNT IN TWO DIFFERENT SETS OF CHEQUES BEARING NUMBERS 024161 TO 024169 FOR .39.00 LAKHS AND BEARING 047281 TO 047285, 042787 AND 042788 FOR .31.00 LAKHS AND APART FROM THE CONFIRMATION, THERE WAS NO EVIDENCE ON RECORD. THE ENQUIRY DONE BY THE ASSESSING OFFICER REVEALED THAT TWO PERSONS VIZ., S/SHRI VINOTH & VENKATTYA WHO HAVE ADVANCED THESE SUMS TO SHRI KUMARAVEL, FORM THE SOURCE OF LOAN TO THE ASSESSEE. BOTH THESE INDIVIDUALS ARE MEN OF MODEST MEANS, NOT ASSESSED TO TAX AND NOT EVEN HAVING A PERMANENT ACCOUNT NUMBER AND ENQUIRY WITH THESE PEOPLE REVEALED THEIR IGNORANCE ABOUT THE CREDITS OF HUGE SUMS OF MONEY IN THEIR BANK ACCOUNT, STATING THAT THEY HAD GIVEN BLANK CHEQUES TO SHRI KUMARAVEL. 4. IT IS AN ADMITTED FACT THAT TO GIVE LOAN TO THE ASSESSEE, SHRI KUMARAVEL HAS GIVEN TWO DIFFERENT SETS OF CHEQUES BEARING NUMBERS 024161 TO 024169 FOR .39.00 LAKHS AND BEARING 047281 TO 047285, 042787 AND 042788 FOR .31.00 LAKHS, WHICH BELONGS TO VINOTH AND VENKATIYYA, WHO ARE THE AGENTS OF SHRI KUMARAVEL. BOTH THE AGENTS ADMITTED BEFORE THE ASSESSING OFFICER THAT THEY WERE NOT AWARE OF THE DEPOSITS AND ISSUE OF CHEQUES AS WELL, BUT ADMITTED TO HAVE GIVEN BLANK CHEQUES TO SHRI KUMARAVEL. SINCE BOTH THE AGENTS HAVE NO OTHER SOURCE, THE ONUS CAST UPON SHRI KUMARAVEL TO SPEAK OUT THE SOURCE OF BOTH THE DEPOSIT OF HIS AGENTS. HOWEVER, T HE PRIMARY EVIDENCE SHRI KUMARAVEL WAS NOT PUT HIS APPEARANCE BEFORE THE ASSESSING OFFICER TO EXPLAIN AS TO HOW HE HAS RECEIVED BL ANK CHEQUES FROM HIS OWN M.P. NO . 89 /M/ 17 6 AGENTS S/SHRI VINOTH & VENKATIYYA DESPITE SERVICE OF SUMMONS AND DEPOSITS MADE IN THE ACCOUNTS HIS AGENTS. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS PROVED THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION AND THEREFORE, IN ABSENCE OF THE ABOVE REQUIREMENT AND , SUMMARILY, THE ASSESSEE FAILED TO DISCHARGE HIS ONUS AND THUS, THE ADDITION MADE TOWARDS THE CREDITOR SHRI KUMARAVEL W AS SUSTAINED BY THE TRIBUNAL VIDE ITS ORDER DATED 09.09.2016. THE ISSUES RAISED IN THE GROUNDS NO. 8 TO 12 ARE NOTHING BUT, SAME FACTS GIVEN IN DIFFERENT LANGUAGES , WHICH DOES NOT WARRANT ANY SEPARATE ADJUDICATION. THUS, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FI LED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 24 TH JANUARY, 2018 AT CHENNAI. SD/ - SD/ - (A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 24 . 0 1 .201 8 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.