Principal Commissioner of Income-tax Central 1, Chennai v. S.A.Kamlesh Kumar (HUF)
[Citation -2020-LL-0715-19]

Citation 2020-LL-0715-19
Appellant Name Principal Commissioner of Income-tax Central 1, Chennai
Respondent Name S.A.Kamlesh Kumar (HUF)
Court HIGH COURT OF MADRAS
Relevant Act Income-tax
Date of Order 15/07/2020
Assessment Year 2013-14
Judgment View Judgment
Keyword Tags concealed the particulars of income • documentary evidence • de novo assessment • undisclosed income • source of cash • speaking order • immunity • penalty
Bot Summary: The assessee had filed return of income on 11.06.2013 admitting total income of Rs.4,07,29,870/-. The computation of the undisclosed gold jewellery has been referred to by the learned Senior Standing Counsel for the revenue by stating that this was done after considering the evidence produced by the assessee before the Assessing Officer. 5.The assessee being aggrieved by the order of assessment filed appeal before the Commissioner of Income Tax-18 CIT(A), Chennai. 6.The learned senior standing counsel strenuously contended that the Tribunal erred in remanding the assessment for de novo assessment as there is every possibility of the assessee retracting his earlier stand and also pave way for producing fabricated document. The learned senior standing counsel also referred to the statement which was recorded under Section 132(4) of the Act on 21.11.2012 and the response of the assessee to the various queries which were raised and the same were ignored by the Tribunal not with the Tribunal confront the assessee regarding non-availability of evidence in respect of the claim at the time of search and availability of such proof only subsequent to the search especially when the assessee had not mentioned about the availability of evidence when statement was recorded under Section 132(4) of the Act. 6.The learned counsel for the respondent/assessee submitted that the order of remand has been complied with and the Assessing Officer has passed an order which was adverse to the assessee and therefore, the assessee has filed an appeal before the CIT(A). Further, we are informed that the assessee has filed an appeal to the Commissioner of Income Tax against the order dated 31.12.2018 and the same is pending.


T.C.A.No.434 of 2018 In High Court of Judicature at Madras Dated : 15.07.2020 Coram : Honourable Mr.Justice T.S.SIVAGNANAM and Honourable Mrs.Justice V.BHAVANI SUBBAROYAN Tax Case Appeal No.434 of 2018 Principal Commissioner of Income Tax Central 1, No.108, Mahatma Gandhi Road, Chennai. ...Appellant Vs Shri S.A.Kamlesh Kumar (HUF) Rep. By Kartha Kamlesh Kumar PAN: AADHK0824K ...Respondent APPEAL under Section 260A of Income Tax Act, 1961 against order dated 12.12.2017 in ITA No.3169/Mds/2016 on file of Income Tax Appellate Tribunal Chennai 'D' Bench for assessment year 2013-14. For Appellant : Mr.T.R.Senthil Kumar Senior Standing Counsel and M/s.K.G.Usha Rani For Respondent : Mr.A.S.Sriraman 1 http://www.judis.nic.in T.C.A.No.434 of 2018 Judgment was delivered by T.S.SIVAGNANAM,J We have heard Mr.T.R.Senthil Kumar, learned Senior Standing Counsel and M/s.K.G.Usha Rani, learned counsel appearing for appellant and Mr.A.S.Sriraman, learned counsel appearing for respondent. 2.This appeal, filed by revenue under Section 260A of Income Tax Act, 1961 ( Act for brevity), is directed against order dated 12.12.2017 passed by Income Tax Appellate Tribunal, Chennai 'D' Bench (for brevity, Tribunal) in ITA No.3169/Mds/2016 for assessment year 2013-14. 3.The following substantial questions of law have been raised by revenue in this appeal: 1.Whether Appellate Tribunal right in setting aside orders of lower authorities with direction to Assessing Officer to do same assessment afresh which unwarranted? 2.Whether Appellate Tribunal is justified in holding that assessee has right to produce evidence in later part of proceedings against his own 2 http://www.judis.nic.in T.C.A.No.434 of 2018 submission made in statement u/s.132(4) of Act and to retract same, ignoring probative value of such statement and fact that such retracting is of no avail in view of provisions of Section 132(4) and its Explanation of Income Tax Act? 3.Whether Appellate Tribunal is correct in entertaining afterthought submission of assessee that excess cash found at time of search relates to sales and bills were pending for updation at time of search, which is contrary to submission made in statement u/s.132(4) of Act when he does not maintain any books of accounts and he has no proof for claim that excess cash represents sale bills? 4.Whether Appellate Tribunal is justified in ignoring fact that provisions of sub-section (2) of Section 271AAB of Act have granted sanctity for statement delivered u/s.132(4) of Act, when it comes to immunity from penalty under that section and as such, similar sanctity has to be accorded for additions made based on such statement? 4.The assessee is Kartha of Hindu Undivided Family and is retail trader carrying on business in jewellery. search woperation ws conducted on 21.11.2012, wherein 22590.760 gms of gold, 3272.620 3 http://www.judis.nic.in T.C.A.No.434 of 2018 gms of bullion and Rs.22,74,500/- cash were seized. assessee had filed return of income on 11.06.2013 admitting total income of Rs.4,07,29,870/-. Assessment was completed under Section 143(3) r/w. Section 153B(1)(b) on 31.03.2015 determining income at Rs.6,30,24,850/- making addition of Rs.5,45,72,620/- towards undisclosed gold jewellery, Rs.58,34,206/- towards undisclosed bullion and Rs.22,74,500/- towards undisclosed income. computation of undisclosed gold jewellery has been referred to by learned Senior Standing Counsel for revenue by stating that this was done after considering evidence produced by assessee before Assessing Officer. It is further submitted by learned Senior Standing Counsel for revenue that assessee during course of search was unable to give proper explanation for source of cash and it was treated as undisclosed income for relevant assessment year and added as such to income assessee. 5.The assessee being aggrieved by order of assessment filed appeal before Commissioner of Income Tax (Appeals)-18 [CIT(A)], Chennai. appeal though was partly allowed in respect of cash found and seized as assessee could not substantiate with documentary evidence, finding of Assessing Officer was upheld 4 http://www.judis.nic.in T.C.A.No.434 of 2018 and appeal to that extent was dismissed. Aggrieved by same, assessee preferred appeal to Tribunal. Tribunal by impugned order remanded matter to Assessing Officer for doing assessment de novo stating that such order of remand would meet ends of justice. 6.The learned senior standing counsel strenuously contended that Tribunal erred in remanding assessment for de novo assessment as there is every possibility of assessee retracting his earlier stand and also pave way for producing fabricated document. learned senior standing counsel also referred to statement which was recorded under Section 132(4) of Act on 21.11.2012 and response of assessee to various queries which were raised and same were ignored by Tribunal not with Tribunal confront assessee regarding non-availability of evidence in respect of claim at time of search and availability of such proof only subsequent to search especially when assessee had not mentioned about availability of evidence when statement was recorded under Section 132(4) of Act. Further, it is submitted that probative value of statement delivered under Section 132(4) of Act being undeniable, order of remand passed by Tribunal 5 http://www.judis.nic.in T.C.A.No.434 of 2018 would lead to various other disastrous consequence. Therefore, it is submitted that order of remand to Assessing Officer is total uncalled for and Tribunal failed to record any reasons justifying order of remand for de novo adjudication. 6.The learned counsel for respondent/assessee submitted that order of remand has been complied with and Assessing Officer has passed order which was adverse to assessee and therefore, assessee has filed appeal before CIT(A). 7.After elaborately considering contentions on either side, we are of view that Substantial Questions of law need not be answered in instant case as they have become academic. It is true that Superior Tribunal or Court cannot mechanically remand matters for fresh consideration or de novo adjudication unless and until it finds justifiable need for such remand. Be that as it may, in instant case, Assessing Officer has passed given effect to order under Section 143(3) r/w. Section 254 of Act dated 31.12.2018 and such order is adverse to assessee as assessee was not able to establish anything and therefore, Assessing Officer held that assessee has concealed particulars of income and had 6 http://www.judis.nic.in T.C.A.No.434 of 2018 no explanation worthwhile to offer. Further, we are informed that assessee has filed appeal to Commissioner of Income Tax (Appeals) against order dated 31.12.2018 and same is pending. 8.In light of above, tax case appeal is disposed of and Substantial Questions of law are left open as we find that issue has become academic in case due to developments which have taken place during pendency of this appeal. No costs. (T.S.S.J.) (V.B.S.J.) 15.07.2020 Speaking (or) Non Speaking Order Index : Yes (or) No Internet : Yes (or) No To Income Tax Appellate Tribunal, Madras 'D' Bench. cse 7 http://www.judis.nic.in T.C.A.No.434 of 2018 T.S.SIVAGNANAM,J AND V.BHAVANI SUBBAROYAN,J cse TCA.No.434 of 2018 15.07.2020 8 http://www.judis.nic.in Principal Commissioner of Income-tax Central 1, Chennai v. S.A.Kamlesh Kumar (HUF)
Report Error