Sri N.Kandasamy, CHENNAI v. ITO, Salem

ITA 737/CHNY/2011 | 2005-2006
Pronouncement Date: 15-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 73721714 RSA 2011
Bench Chennai
Appeal Number ITA 737/CHNY/2011
Duration Of Justice 2 month(s) 24 day(s)
Appellant Sri N.Kandasamy, CHENNAI
Respondent ITO, Salem
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 15-07-2011
Date Of Final Hearing 13-07-2011
Next Hearing Date 13-07-2011
Assessment Year 2005-2006
Appeal Filed On 21-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE SHRI N. S. SAINI ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER .. I.T.A. NO. 737/MDS/2011 ASSESSMENT YEAR : 2005-06 SHRI N. KANDASAMY VENKATESAPURI MALLASAMUDRAM PO TIRUCHENGODE TK. NAMAKKAL DISTRICT. V. THE INCOME-TAX OFFICER WARD-II(1) SALEM. (PAN/GIR NO. 21PK0536) I.T.A. NO. 738/MDS/2011 ASSESSMENT YEAR : 2005-06 SHRI K. PASUPATHY V. THE INCOME-TAX OF FICER GORIMEDU TEACHER COLONY WARD-II(1) NANGALAM PO SALEM. TIRUCHENGODE TK. NAMAKKAL DISTRICT. (PAN/GIR NO. 21PP0924) I.T.A. NO. 739/MDS/2011 ASSESSMENT YEAR : 2006-06 SHRI N. VENKATACHALAM V. THE INCOME-TAX OFFICER CHB COLONY (WEST) WARD-II(1) VELUR ROAD SALEM. TIRUCHENGODE TK. NAMAKKAL DISTRICT. (PAN/GIR NO. 21PV0531) I.T.A. NOS.737-741/MDS/2011 2 I.T.A. NO. 740/MDS/2011 ASSESSMENT YEAR : 2005-06 SHRI M. SENGODAN V. THE INCOME-TAX OFFICER 8/85-A SALEM MAIN ROAD WARD-II(1) VENKATESAPURI SALEM. TIRUCHENGODE TK. NAMAKKAL DISTRICT. (PAN/GIR NO. 21PS2033) AND I.T.A. NO. 741/MDS/2011 ASSESSMENT YEAR : 2005-06 SMT. P. SELVI V. THE INCOME-TAX O FFICER GORIMEDU TEACHER COLONY WARD-II(1) MANGALAM PO SALEM. TIRUCHENGODE TK. NAMAKKAL DISTRICT. (PAN/GIR NO. : 21PS2034) (APPELLANTS) (RESPNDENT) APPELLANTS BY : SHRI B. RAVEENDRAN RESPONDENT BY : SHRI SHAJI P. JACOB O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : ITA NO. 737/MDS/2011 AN APPEAL FILED BY THE ASSESS EE SHRI N. KANDASAMY AGAINST THE ORDER OF THE LEARNED CIT(APPEALS) SALE M IN ITA 169/08-09 DATED 28- I.T.A. NOS.737-741/MDS/2011 3 01-2010 FOR THE ASSESSMENT YEAR 2005-06. ITA NO. 738/MDS/2011 AN APPEAL FILED BY THE ASSESSEE SHRI K. PASUPATHY AGAINST TH E ORDER OF THE LEARNED CIT(APPEALS) SALEM IN ITA 166/08-09 DATED 28-01-20 10 FOR THE ASSESSMENT YEAR 2005-06. ITA NO. 739/MDS/2011 AN APPEAL FILED BY THE ASSESSEE SHRI N. VENKATACHALAM AGAINST THE ORDER OF THE LEARNED CIT( APPEALS) SALEM IN ITA 165/08-09 DATED 28-01-2010 FOR THE ASSESSMENT YEAR 2005-06. ITA NO. 740/MDS/2011 AN APPEAL FILED BY THE ASSESSEE SHRI M. SENGODAN AGAINST THE ORDER OF THE LEARNED CIT(APPEALS) SALEM IN ITA 168 /08-09 DATED 28-01-2010 FOR THE ASSESSMENT YEAR 2005-06. ITA NO. 741/MDS/2011 AN APPEAL FILED BY THE ASSESSEE SMT. P. SELVI AGAINST THE ORDER OF THE LE ARNED CIT(APPEALS) SALEM IN ITA 170/08-09 DATED 28-01-2010 FOR THE ASSESSMENT Y EAR 2005-06. 2. SHRI B. RAVEENDRAN ADVOCATE REPRESENTED ON BEHA LF OF THE ASSESSEES AND SHRI SHAJI P. JACOB LEARNED SR. DR REPRESENTED ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE L EARNED AUTHORISED REPRESENTATIVE THAT THE LEARNED CIT(A) OUGHT TO HAV E CONSIDERED THE SUBMISSIONS MADE BEFORE HIM AND DECIDED THE APPEALS ON MERITS. IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) HAD HELD THAT THE ASSESSEES HAD FAILED TO EXPLAIN BEFORE THE ASSESSING OFFICER REGARDING THE CASH CONTRIBUTION A S AN ADDITIONAL CAPITAL IN THE PARTNERSHIP FIRM AND HAD BLINDLY UPHELD THE ORDERS OF THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE ORDER OF THE LEARNED CI T(A) IS LIABLE TO BE REVERSED. I.T.A. NOS.737-741/MDS/2011 4 4. IN REPLY THE LEARNED DR SUBMITTED THAT THE ASSE SSEES HAD NOT CO-OPERATED BEFORE THE ASSESSING OFFICER AND HAD NOT PRODUCED A NY EVIDENCE BEFORE THE ASSESSING OFFICER. IT WAS THE FURTHER SUBMISSION E VEN BEFORE THE LEARNED CIT(A) OR BEFORE THE TRIBUNAL THE ASSESSEES HAVE NOT PRODU CED ANY EVIDENCE TO EXPLAIN THE SOURCE OF THE ADDITIONAL CAPITAL INTRODUCTION I N THE PARTNERSHIP FIRM. IT WAS THE SUBMISSION THAT THE ORDER OF THE LEARNED CIT(A) IS LIABLE TO BE SUSTAINED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE APPEALS FILED BY THE APPELLANTS SHOW THAT THE APPEALS ARE BELATED. IT IS FURTHER NOTICED THAT THE APPELLANTS HAD FILED WRIT PETITIONS IN W.P. NOS. 26 649 TO 26653 OF 2010 BEFORE THE HON'BLE HIGH COURT OF MADRAS. IT WAS NOTICED THAT THE HON'BLE HIGH COURT HAS GRANTED THE APPELLANTS LIBERTY TO FILE THE APPEALS BEFORE THE TRIBUNAL AND THE TRIBUNAL HAS BEEN DIRECTED TO ENTERTAIN AND TAKE UP THE HEARING OF THE APPEALS ON MERITS WITHOUT REFERENCE TO LIMITATION. CONSEQUENT LY IN VIEW OF THE DIRECTIONS OF THE HON'BLE HIGH COURT IN WRIT PETITION NOS. 26649 TO 26653 OF 2010 THE APPEALS OF THE ASSESSEES ARE BEING DISPOSED OF ON MERITS WI THOUT CONSIDERING THE ISSUE OF LIMITATION. 6. A PERUSAL OF THE ASSESSMENT ORDERS SHOWS THAT TH E ASSESSING OFFICER HAD ISSUED A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT 1961 AND THERE WAS NO RESPONSE. SUBSEQUENTLY ANOTHER NOTICE HAD BEEN ISS UED. IT IS FURTHER NOTICED THAT SINCE THERE WAS NO RESPONSE FROM THE ASSESSEES A SHOW CAUSE NOTICE WAS I.T.A. NOS.737-741/MDS/2011 5 SERVED ON THE ASSESSEES TO WHICH THE ASSESSEES HAVE FILED LETTER DATED 24-11- 2008 STATING THAT THEY WERE UNABLE TO CONTACT THE A UDITORS AND WANTED TIME TO FILE THE RETURNS OF INCOME BEFORE 30 TH OF NOVEMBER. IT IS NOTICED THAT EVEN AFTER 30 TH NOVEMBER THE ASSESSEES HAD NOT FILED THE RETURNS O F INCOME. CONSEQUENTLY THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENTS UND ER SECTION 144 OF THE INCOME TAX ACT 1961. HERE IT IS NOTICED THAT THE ASSESSING OFFICER HAS GIVEN OPPORTUNITY TO THE ASSESSEES AND THE ASSESSEES HAVE ALSO RESPONDED SAYING THAT THEY WANTED TIME UPTO 30 TH NOVEMBER. IT IS NOTICED THAT AFTER 30 TH NOVEMBER NO NOTICE HAS BEEN ISSUED TO THE ASSESSEES GIVING FURT HER OPPORTUNITY. A PERUSAL OF THE ORDER OF THE LEARNED CIT(A) SHOWS THAT THE LEAR NED CIT(A) HAS NOT CONSIDERED ANY OF THE ARGUMENTS PUT BY THE ASSESSEES. IN THES E CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ISSUE IN THESE APPEALS MUST BE RE STORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRANTIN G THE ASSESSEES ADEQUATE OPPORTUNITY TO SUBSTANTIATE THEIR CLAIM. IN THESE CIRCUMSTANCES THE ASSESSEES ARE DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON 17 TH OCTOBER 2011 AND PRODUCE ALL SUCH EVIDENCES AS ARE CALLED FOR BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPLETING THE ASSESSMENTS AT THE EARLIE ST. THE ASSESSING OFFICER SHALL BE AT LIBERTY TO CALL FOR ALL SUCH DETAILS AS ARE REQUIRED FOR COMPLETING THE ASSESSMENTS AND NO FETTERS ARE PLACED ON THE ASSESS ING OFFICER IN REGARD TO THE VERIFICATION DEEMED TO BE NECESSARY BY HIM. IF THE ASSESSEES DO NOT CO-OPERATE IN THE SET ASIDE PROCEEDINGS OR THE ASSESSEES DO NO T APPEAR BEFORE THE ASSESSING I.T.A. NOS.737-741/MDS/2011 6 OFFICER ON THE SPECIFIED DATE OF 17 TH OCTOBER 2011 THE ASSESSING OFFICER SHALL BE AT LIBERTY TO DRAW ADVERSE INFERENCE. IN THE CIRCU MSTANCES THE APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED FOR STATISTICAL PURPOS ES. 7. THE ORDER WAS PRONOUNCED IN THE COURT ON 15/07/2 011. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 15 TH JULY 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE