B.Kamaraj, Erode v. ITO, Erode

ITA 2069/CHNY/2015 | 2010-2011
Pronouncement Date: 28-10-2016 | Result: Allowed

Appeal Details

RSA Number 206921714 RSA 2015
Assessee PAN BJUPK9323G
Bench Chennai
Appeal Number ITA 2069/CHNY/2015
Duration Of Justice 1 year(s) 8 day(s)
Appellant B.Kamaraj, Erode
Respondent ITO, Erode
Appeal Type Income Tax Appeal
Pronouncement Date 28-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 28-10-2016
Assessment Year 2010-2011
Appeal Filed On 20-10-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI . . . . . !' # $% BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH ACCOUNTANT MEMBER ./ ITA NO.2069/MDS/2015 & '& /ASSESSMENT YEAR : 2010-11 SHRI B.KAMARAJ C/O. MR.S.SRIDHAR ADVOCATE 112/1 PERIYAR STREET ERODE 638 001. PAN: BJUPK 9323 G V. THE PRINCIPAL COMMISSIONER OF INCOME TAX -2 INCOME TAX OFFICE NO.63 RACE COURSE COIMBATORE. ( () /APPELLANT) ( *+() /RESPONDENT) ./ ITA NO.2071/MDS/2015 & '& /ASSESSMENT YEAR : 2010-11 SHRI G.BALAKRISHNAN C/O. MR.S.SRIDHAR ADVOCATE 112/1 PERIYAR STREET ERODE 638 001. PAN: AGDPB 6110 B V. THE PRINCIPAL COMMISSIONER OF INCOME TAX -2 INCOME TAX OFFICE NO.63 RACE COURSE COIMBATORE. ( () /APPELLANT) ( *+() /RESPONDENT) () - /APPELLANT BY : SHRI S.SRIDHAR ADVOCATE ERODE *+() - /RESPONDENT BY : SHRI PATHLAVATH PEERYA CIT 2 I.T.A. NO.2069 & 2071/ MDS/2015 .# /DATE OF HEARING : 21.09.2016 /0' .# /DATE OF PRONOUNCEMENT : 28.10.2016 /O R D E R PER N.R.S. GANESAN JUDICIAL MEMBER: BOTH THE APPEAL OF THE TWO INDEPENDENT ASSESSEE A RE DIRECTED AGAINST THE RESPECTIVE ORDER OF THE PRINCIPAL CIT F OR THE ASSESSMENT YEAR 2010-11. 2. THERE IS A DELAY OF 139 DAYS IN FILING BOTH THE APPEALS BEFORE THIS TRIBUNAL. SHRI S.SRIDHAR THE LEARNED COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE ASSESSEE HANDED OVER THE FILES TO THE CHAR TERED ACCOUNTANT FOR FILING THE APPEAL BEFORE THIS TRIBUNAL. THE CHARTER ED ACCOUNTANT HOWEVER SUFFERED HEART ATTACK AND HE WAS STENTED TWICE. THE REFORE HE COULD NOT FILE THE APPEAL WITHIN THE TIME PRESCRIBED. IN THE MEANTIME THE CHARTERED ACCOUNTANTS FATHER SHRI THIMMI CHETTY AL SO EXPIRED. THEREFORE THE CHARTERED ACCOUNTANT COULD NOT FILE THE APPEAL BEFORE THIS TRIBUNAL WITHIN THE TIME. AFTER THAT THE ASSESSEE TOOK STEPS TO FILE THE APPEAL THROUGH THE PRESENT COUNSEL. HENCE THE DELA Y WAS BEYOND THE CONTROL OF THE ASSESSEE. THEREFORE THE LEARNED COU NSEL SUBMITTED THAT THE DELAY OF 139 DAYS MAY BE CONDONED. 3 I.T.A. NO.2069 & 2071/ MDS/2015 3. WE HEARD SHRI PATHLAVATH PEERYA THE LEARNED RE PRESENTATIVE FOR THE DEPARTMENT ALSO. ACCORDING TO THE LEARNED REPRE SENTATIVE EVEN THOUGH THE ASSESSEE HAS PRODUCED A MEDICAL CERTIFIC ATE TO SHOW THAT THE CHARTERED ACCOUNT WAS SUFFERED HEART ATTACK AND WHO WAS STENTED TWICE THAT CANNOT BE A REASON FOR THE ASSESSEE FOR NOT FI LING THE APPEAL BEFORE THIS TRIBUNAL. THEREFORE THERE IS NO REASONABLE CA USE ON THE PART OF THE ASSESSEE IN NOT FILING APPEAL WITHIN THE TIME PROVI DED UNDER THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER REC EIPT OF THE ORDER FROM THE CIT(A) THE ASSESSEE CLAIMS THAT THE SAME WAS H ANDED OVER TO THE CHARTERED ACCOUNTANT FOR PREPARING THE APPEAL. UNFO RTUNATELY THE CHARTERED ACCOUNTANT SUFFERED HEART ATTACK. HE WAS STENTED TWICE. MOREOVER THE CHARTERED ACCOUNTANT FATHER ALSO EXPI RED IN THE MEANTIME. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE INITIATED PROMPT ACTION FOR FILING THE APPEAL BEFORE THIS TRI BUNAL AND DUE TO UNFORESEEN INCIDENT TOOK PLACE IN THE FAMILY OF THE CHARTERED ACCOUNTANT AND IN FACT THE CHARTERED ACCOUNTANT HIMSELF SUFFE RED HEART ATTACK AND HE WAS STENTED TWICE PREVENTED THE CHARTERED ACCOUNTAN T HIMSELF FROM FILING THE APPEAL IN TIME. THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE ASSESSEE WAS PREVENTED FROM FILING THE APPEAL BEFOR E THIS TRIBUNAL WITHIN THE TIME PRESCRIBED. THEREFORE THERE IS NO NEGLIGE NCE ON THE PART OF BOTH 4 I.T.A. NO.2069 & 2071/ MDS/2015 THE ASSESSEES IN TAKING STEPS TO FILE THE APPEAL. A CCORDINGLY THE DELAY OF 139 DAYS IN FILING THE APPEAL IS HEREBY CONDONED AN D BOTH THE APPEALS OF THE ASSESSEE ARE ADMITTED. 5. NOW COMING TO THE MERIT OF THE APPEAL SHRI S.SRIDHAR THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSI NG OFFICER CONSEQUENT TO THE SURVEY OPERATION UNDER SECTION 133A COMPLETE D THE ASSESSMENT BY MAKING ADDITIONS TO THE GROSS PROFIT AT THE RATE OF 12% IN THE CASE OF SHRI G.BALAKRISHNAN. ACCORDING TO THE LEARNED COUNS EL SHRI G.BALAKRISHNAN IS THE FATHER OF MR.B.KAMARAJ THE ASSESSEE IN ITA NO.2069/MDS/2015. THE ADMINISTRATIVE COMMISSIONER F OUND THAT THE CIT(A) BY HIS ORDER DATED 14.11.2014 DIRECTED THE A SSESSING OFFICER TO ADOPT 6% AS GROSS PROFIT INSTEAD OF 12% ADOPTED BY THE ASSESSING OFFICER. THE LEARNED COUNSEL FURTHER CLARIFIED THAT NO BOOKS OF ACCOUNT WAS MAINTAINED BY THE ASSESSEE. THE ENTIRE MATERIAL FOU ND DURING THE COURSE OF SURVEY OPERATION WAS IMPOUNDED BY THE REVENUE AU THORITIES. THE COPIES OF THE IMPOUNDED DOCUMENTS WERE NOT FURNISHE D TO THE ASSESSEE. IN SPITE OF REPEATED REQUESTS A COPY OF THE IMPOUN DED DOCUMENT WAS NOT PRODUCED TO THE ASSESSEE. THEREFORE THE ASSESS EE WAS NOT IN A POSITION TO CONTEST THE CASE EITHER BEFORE THE ASSE SSING OFFICER OR BEFORE THE ADMINISTRATIVE COMMISSIONER. THEREFORE THE LEA RNED COUNSEL SUBMITTED THAT THE ASSESSING OFFICER MAY BE DIRECTE D TO FURNISH COPIES OF THE DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY OPERATION UNDER 5 I.T.A. NO.2069 & 2071/ MDS/2015 SECTION 133A WITHIN THE TIME LIMIT THAT MAY BE FIXE D BY THIS TRIBUNAL AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WI TH LAW. 6. WE HEARD SHRI PATHLAVATH PEERYA THE LEARNED DE PARTMENT REPRESENTATIVE ALSO. THE LEARNED DEPARTMENT REPRESE NTATIVE VERY FAIRLY SUBMITTED THAT THE COPY OF THE IMPOUNDED DOCUMENTS CAN BE GIVEN TO THE ASSESSEE SO THAT THE ASSESSEE CAN RESPOND TO THE QU ERIES RAISED BY THE ASSESSING OFFICER. THEREFORE THE LEARNED DEPARTMEN T REPRESENTATIVE VERY FAIRLY SUBMITTED THAT THE MATTER MAY BE REMITTED BA CK TO THE FILE OF THE ASSESSING OFFICER FOR RE-CONSIDERATION. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDL Y CONSEQUENT TO THE SURVEY OPERATION UNDER SECTION 133A THE ASSESSING OFFICER FRAMED THE ASSESSMENT ORDER BY ESTIMATING THE GROSS PROFIT AT 12%. IT IS NOT KNOWN HOW THE ASSESSING OFFICER ESTIMATED THE TURNOVER. T HE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT. APPARENTLY THE AS SESSING OFFICER ESTIMATED THE TURNOVER ON THE BASIS OF THE MATERIAL FOUND DURING THE COURSE OF SURVEY OPERATION WHICH WAS IMPOUNDED. THE REFORE THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DOCU MENTS IMPOUNDED BY THE ASSESSING OFFICER DURING THE COURSE OF SURVEY O PERATION NEEDS TO BE FURNISHED TO THE ASSESSEE SO THAT THE ASSESSEE COUL D UNDERSTAND ON WHAT BASIS THE TURNOVER AND GROSS PROFIT WAS ESTIMA TED. 6 I.T.A. NO.2069 & 2071/ MDS/2015 8. WHEN THERE WAS A SURVEY OPERATION UNDER SECTION 133A AND THE ASSESSMENT PROCEEDINGS WERE COMPLETED ON THE BASIS OF THE MATERIALS FOUND DURING THE COURSE OF SURVEY OPERATION THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATERIALS DOCUMENTS WH ICH WAS FOUND DURING THE SURVEY OPERATION HAS TO BE FURNISHED TO THE ASS ESSEE IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. UNFORTUNATELY THE REVE NUE AUTHORITIES COULD NOT FURNISH THE COPIES OF THE IMPOUNDED DOCUM ENTS FOUND DURING THE SURVEY OPERATION. THEREFORE THE ASSESSEE COULD UNDERSTAND ON WHAT BASIS THE TURNOVER AND GROSS PROFIT WAS ESTIMATED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE IMPOUNDED DOCUMENT S WAS RELIED UPON BY THE REVENUE AUTHORITIES FOR ESTIMATING TURNOVER ON GROSS PROFIT COPIES OF THE IMPOUNDED DOCUMENTS ARE TO BE FURNISHED TO T HE ASSESSEE. ACCORDINGLY BOTH THE AUTHORITIES BELOW ARE NOT JUS TIFIED IN ESTIMATING THE GROSS PROFIT AND THE TOTAL TURNOVER. THEREFORE THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSU E IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OF FICER SHALL RE-EXAMINE THE MATTER AFRESH AND FURNISH THE COPIES OF THE MAT ERIAL FOUND AND IMPOUNDED DURING THE SURVEY OPERATION UNDER SECTION 133A TO THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDAN CE WITH LAW. IT IS MADE CLEAR THAT THE COPIES OF THE DOCUMENTS FOUND A ND IMPOUNDED DURING THE SURVEY OPERATION AND OTHER MATERIAL AVAI LABLE ON RECORD SHALL BE FURNISHED TO THE ASSESSEE WITHIN FOUR WEEKS FROM THE DATE OF RECEIPT OF 7 I.T.A. NO.2069 & 2071/ MDS/2015 COPY OF THIS ORDER BY THE ASSESSING OFFICER. THEREA FTER THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE TO RESPOND T O THE IMPUGNED DOCUMENTS. 9. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 TH OCTOBER 2016 AT CHENNAI. SD/- SD/- ( . . !' ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) # /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI 1 /DATED THE 28 TH OCTOBER 2016. SP. *.!2 32'. /COPY TO: 1. () /APPELLANT 2. *+() /RESPONDENT 3. 4. ( )/CIT(A) 4. 4. /CIT 5. 25 *. /DR 6. & 6 /GF.