ACIT, Kolkata v. Shri A.Subramaniam, Tiruvannamalai

ITA 3316/CHNY/1992 | misc
Pronouncement Date: 06-08-2010 | Result: Dismissed

Appeal Details

RSA Number 331621714 RSA 1992
Bench Chennai
Appeal Number ITA 3316/CHNY/1992
Duration Of Justice 18 year(s) 2 month(s) 29 day(s)
Appellant ACIT, Kolkata
Respondent Shri A.Subramaniam, Tiruvannamalai
Appeal Type Income Tax Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 06-08-2010
Date Of Final Hearing 02-08-2010
Next Hearing Date 02-08-2010
Assessment Year misc
Appeal Filed On 08-05-1992
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH A : CHENNAI [BEFORE SHRI PRADEEP PARIKH VICE-PRESIDENT AND SHRI HARI OM MARATHA JUDICIAL MEMBER] I.T.A NO.1873/MDS/1990 ASSESSMENT YEAR : 1986-87 SMT. A SELVI WIFE & L.R OF LATE A.SUBRAMANIAN NO.130/4A PERUMAL NAGAR TIRUVANNAMALAI 2 VS THE ACIT CIRCLE II(1) KOLKATA (APPELLANT) (RESPONDENT) I.T.A NOS.3315 TO 3317/MDS/1992 ASSESSMENT YEAR : 1986-87 THE ACIT CIRCLE II(1) KOLKATA VS SMT. A SELVI WIFE & L.R OF LATE A.SUBRAMANIAN NO.130/4A PERUMAL NAGAR TIRUVANNAMALAI 2 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.MAHESH DEPARTMENT BY : SHRI SHAJI P. JACOB O R D E R PER HARI OM MARATHA JM: THIS IS A BUNCH OF FOUR APPEALS PERTAINING TO ASSESSMENT YEAR 1986-87 ONE APPEAL HAS BEEN FILED BY THE ASSESSEE AND THE OTHER ITA 1873/90 & 3315 TO 3317/1992 :- 2 -: THREE APPEALS BY THE REVENUE. FOR THE SAKE OF CONV ENIENCE AND BREVITY WE PROCEED TO DECIDE THEM BY A COMMON ORDE R. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE BEING A SENIOR INSPECTOR IN M/S PEERLESS GENERAL FI NANCE & INVESTMENT CO.LTD WAS ALSO EARNING COMMISSION FROM HIS EMPLO YER. HE MAINTAINED SIX OFFICES AT DIFFERENT PLACES ACROSS T HE COUNTRY INCLUDING ONE AT KOLKATA. THE ASSESSEE FILED HIS RETURN OF INCOME ON 8.6.1988 SHOWING A TOTAL INCOME OF ` 2 80 900/- BUT HE REVISED THE SAME ON 10.11.1988 IN WHICH TOTAL INCOME WAS SHOWN AT ` 2 35 820/-. THE ASSESSING OFFICER ENQUIRED THE EXPENSES CLAIMED UND ER VARIOUS ACCOUNTS AND ALSO ESTIMATED COMMISSION INCOME. AGA INST THIS THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT( A) KOLKATA WHO GAVE A PART RELIEF TO THE ASSESSEE. THE ASSESSEE I S IN FURTHER APPEAL BEFORE US. 3. BEFORE US VARIOUS GROUNDS HAVE BEEN RAISED BUT AT THE TIME OF HEARING THE LD.AR DID NOT PRESS GROUND NOS. 4 TO 8 BUT THE ESTIMATION OF COMMISSION INCOME HAS BEEN DISPUTED. CONSEQUENT LY THESE GROUNDS WHICH HAVE NOT BEEN PRESSED STAND DISMISSED . 4. IN SO FAR AS THE ONLY REMAINING GROUND IS CONCERNED THE ASSESSEE HAS SHOWN DETAILS OF GROSS COMMISSION EARN ED TOTAL EXPENSES CLAIMED AND DISALLOWED IN ASSESSMENT YEARS 1983-84 TO 1986-87 IN THE GROUNDS OF APPEAL ITSELF. THE LD. CIT(A) TOOK AVERAGE ITA 1873/90 & 3315 TO 3317/1992 :- 3 -: OF THE PERCENTAGE OF ASSESSED INCOME OVER GROSS COM MISSION AND TOOK AN AVERAGE AT 24.3%. THE ASSESSEE HAS GIVEN A COMP ARABLE CASE OF ONE SHRI MIHIR BANERJEE WHO WAS ALSO EARNING SIMI LAR COMMISSION WHERE THE TRIBUNAL HAD ACCEPTED NET COMMISSION AT 2 3.1%. BEFORE US THE LD.AR HAS TAKEN SIMILAR LINE OF ARGUMENTS. THE LD.DR HAS DEFENDED THE FINDING OF THE LD. CIT(A). 5. AFTER CONSIDERING BOTH SIDES WE ARE OF THE CONSIDE RED OPINION THAT THE PAST HISTORY OF THE ASSESSEE ITSELF IS THE BEST GUIDE FOR MAKING ESTIMATION. IN CASE THERE IS NO PAST HISTORY OF THE ASSESSEE ONLY THEN ONE CAN TRAVEL TO OTHER COMPARABLE CASES FOR TAKING GUIDANCE. CONSEQUENTLY WE DO NOT FIND ANY INFIRMITY IN THE I MPUGNED FINDING AND WE CONFIRM THE SAME. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STA NDS DISMISSED. 7. IN I.T.A.NO. 3315/MDS/92 THE ONLY GROUND RAISED BY THE REVENUE READS AS UNDER: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS)-VI CALCUTTA ERRED IN DELETING THE ADDITION OF ` 36 900/- IN THE ORDER UNDER SECTION 154 OF THE INCOME-TAX ACT. 8. THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSESSEE HAS SHOWN WITHDRAWALS FOR HOUSEHOLD EXPENSES AT ` 17 000/- ONLY. AS NO DETAILS WERE AVAILABLE THE ASSESSING OFFICER ESTIMATED THE FAMILY EXPENSES AT ITA 1873/90 & 3315 TO 3317/1992 :- 4 -: ` 36 000/-. THEREAFTER A PETITION FOR RECTIFICATIO N U/S 154 OF THE ACT WAS FILED IN WHICH IT WAS PRAYED AS UNDER: THAT THE DRAWINGS DEBITED IN THE CAPITAL ACCOUNT FILED ALONGWITH THE RETURN WAS ` 20 000/- AND NOT 5 000/- AS ESTIMATED ERRONEOUSLY BY THE ASSISTANT COMMISSIONER . HENCE AS THE LEARNED COMMISSIONER (APPEALS) HAS ESTIMATED THE TOTAL HOUSEHOLD EXPENSES AT ` 36 000/- AND SINCE THE APPELLANT HAS ALREADY ADMITTED ` 20 000/- AN ADDITION OF ` 16 000/- ONLY HAS TO BE SUSTAINED AS AGAINST THE ADDITION OF ` 52 900/- BY THE ASSISTANT COMMISSIONER. HENCE THE CORRECT RELIEF WOULD WORK OUT TO ` 36 900 ( ` 52 900 - 16 000) AS PRAYED IN MY PETITION DATED 10 .5.90 AS AGAINST ` 21 900/- COMPUTED IN PARA 4 OF THE ORDER U/S 154 DATED 24.8.90. 9. THE LD. CIT(A) FOUND THIS CLAIM OF THE ASSESSEE TO BE CORRECT AND GAVE A RELIEF OF ` 36 900/- AND SUSTAINED AN ADDITION OF ` 16 000/-. 10. BEFORE US IT WAS FOUND THAT AFTER RECTIFICATION ON LY AN ADDITION OF ` 16 000/- SHALL REMAIN AND THEREAFTER THERE IS NO E RROR. CONSEQUENTLY WE CONFIRM THE ORDER PASSED U/S 154 AND DISMISS THE APPEAL OF THE REVENUE. 11. I.T.A.NO. 3316/MDS/92 IS AGAINST THE DELETION OF PE NALTY OF ` 30 690/- IMPOSED U/S 271(1)(A) OF THE ACT FOR FAILU RE TO FILE THE RETURN IN TIME AND I.T.A.NO. 3317/MDS/92 IS AGAINST THE DE LETION OF PENALTY OF ` 14 000/- IMPOSED U/S 273(1)(B) OF THE ACT ON ACCOU NT OF FAILURE TO FILE STATEMENT OF ADVANCE TAX IN RESPECT OF HIS IN COME FOR THIS ASSESSMENT YEAR. THE PENALTY HAS BEEN IMPOSED ON T HE GROUND OF NON-COMPLIANCE. ITA 1873/90 & 3315 TO 3317/1992 :- 5 -: 12. BEFORE WE PROCEED TO DECIDE BOTH THESE APPEALS THE IMPORTANT FACTS WHICH ARE VERY RELEVANT FOR THE DISPOSAL OF T HESE APPEALS ARE THAT THE ASSESSEE IS ADMITTEDLY AND UNDISPUTEDLY NO MORE ALIVE AS HE HAS DIED ON 2.12.1996. THEREAFTER HIS WIFE SMT. S.SE LVI WAS IMPENDED AS LEGAL REPRESENTATIVE AND THE REASONS FOR LATE FI LING OF THE RETURN AND NON-FILING THE ADVANCE TAX STATEMENT WAS GIVEN TO BE THE ILLNESS OF THE ASSESSEE WHO WAS SUFFERING FROM HEART DISEASE A ND WAS UNABLE TO CONTACT THE CA AT CALCUTTA. FURTHER M/S PEERLESS GENERAL FINACNE & INVESTMENT CO. LTD WAS FACING LEGAL TROUBLE FROM AL L QUARTERS. THE LD. CIT(A) HAS FOUND THE REASON OF THE ILLNESS OF THE A SSESSEE AND LABOUR TROUBLE IN THE ORGANIZATION FROM WHERE THE ASSESSEE WAS DERIVING COMMISSION TO BE A REASONABLE AND SUFFICIENT CAUSE FOR THE FAILURES IN QUESTION. ON THAT BASIS ONLY HE DELETED BOTH THE P ENALTIES. 13. BEFORE US BOTH THE PARTIES TOOK THEIR EARLIER ST AND. THE LD.DR COULD NOT CONTROVERT EITHER THE FACTUM OF SUFFERING AND THERE AFTER DEATH OF THE ASSESSEE AND THE TROUBLE IN THE ORGANI ZATION FROM WHERE THE ASSESSEE WAS DERIVING COMMISSION. CONSEQUENTLY WE ALSO FIND THESE REASONS TO BE SUFFICIENT TO EXONERATE THE ASS ESSEE FROM THE IMPUGNED PENALTIES. THE DEPARTMENT CANNOT SUCCEED IN THESE APPEALS. 14. IN THE RESULT THESE APPEALS ARE DISMISSED. ITA 1873/90 & 3315 TO 3317/1992 :- 6 -: 15. TO SUMMARIZE THE RESULT THE APPEAL OF THE ASSESSEE IN I.T.A.NO. 1873/MDS/90 IS DISMISSED. ALL THE THREE APPEALS OF THE REVENUE IN I.T.A.NOS.3315 TO 3317/MDS/92 ARE ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6. 8.2010. SD/- SD/- (PRADEEP PARIKH) VICE-PRESIDENT ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 6 TH AUGUST 10 RD : COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR