SHRI T.E.ABINESH vs. THE ASSISTANT COMMISSIONER O

TCA.No.130 of 2021 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.2.2021 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MS.JUSTICE R.N.MANJULA Tax Case Appeal No.130 of 2021

Shri.T.E.Abinesh, Abi & Abi Group of Companies ...Appellant Vs The Assistant Commissioner of Income Tax, Non Corporate Ward 8(1), Chennai-34. ...Respondent APPEAL under Section 260A of the Income Tax Act, 1961 against the order dated 02.12.2019 passed by the Income Tax Appellate Tribunal, Madras 'D' Bench, Chennai made in I.T.A.No.2560/Mds/2018 for the assessment year 2013-14. For Appellant: Mr.A.S.Sriraman for Mr.Shanmugam Rajasekar For Respondent : Mr.Karthik Ranganathan, SC Judgment was delivered by

T.S.SIVAGNANAM

This appeal has been filed by the Revenue under Section 260A of 1/6 https://www.mhc.tn.gov.in/judis/ TCA.No.130 of 2021 the Income Tax Act, 1961 ('the Act' for brevity) challenging the order dated 02.12.2019 made in I.T.A.No.2560/Mds/2018 on the file of the Income Tax Appellate Tribunal, Chennai, 'D' Bench ('the Tribunal' for brevity) for the assessment year 2013-14. 2. The Revenue has filed this appeal by raising the following substantial questions of law: “i. Whether the Appellate Tribunal is justified in law in confirming the ex parte order in sustaining the additions made on account of cash deposits made under Section 68 of the Act as well as the disallowance of travel expenses under Section 37(1) of the Act by recording perverse finding of facts in the impugned order ? ii. Whether the Appellate Tribunal is justified in law in confirming the addition made by invoking the provisions in Section 68 of the Act overlooking the explanations made by the appellant and the details provided during the course of the assessment by recording perverse finding of facts in the impugned order? iii. Whether the Appellate Tribunal is justified in law in confirming the disallowance of travel expenditure under Section 37(1) of the Act made only on account of absence of 2/6 https://www.mhc.tn.gov.in/judis/ TCA.No.130 of 2021 nexus overlooking the explanation and details produced during the course of the assessment by recording perverse finding of facts in the impugned order ? And iv. Whether the Appellate Tribunal is justified in law in not deciding/adjudicating the issues raised before them without confirming the ex parte order in recording the perverse finding of fact with regard to absence of evidence for the issues under consideration?” 3. We have heard Mr.A.S.Sriraman, learned counsel appearing on behalf of Mr.Shanmugam Rajasekar, learned counsel on record for the appellant/assessee and Mr.Karthik Ranganathan, learned Standing Counsel appearing for the respondent/Revenue. 4. The assessee is aggrieved by the order passed by the Tribunal in deciding two issues out of three issues against the assessee and confirming the addition made by the Assessing Officer on account of traveling expenses and cash deposits. 5. With regard to the issue pertaining to non deduction of tax at source, the Tribunal remanded the matter to the Assessing Officer for re-adjudication in line with the decision of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages (P) Ltd. Vs. CIT [reported in (2007) 293 ITR 226]. 3/6 https://www.mhc.tn.gov.in/judis/ TCA.No.130 of 2021 6. It is the submission of the learned counsel appearing for the appellant that before the Commissioner of Income Tax (Appeals)-9, Chennai [for short, the CIT(A)], the assessee could not appear for reasons beyond his control, that it was an ex parte order and that the Tribunal, having remanded the matter to the Assessing Officer for a fresh consideration with regard to the issue pertaining to non deduction of tax at source, could have afforded one more opportunity to the assessee to go before the Assessing Officer and establish that the addition made on account of travel expenses and cash deposits as done by the Assessing Officer was incorrect. 7. As could be seen from the order passed by the CIT(A) dated 27.6.2018, none appeared for the assessee when the matter was heard. In fact, it was recorded that in spite of numerous opportunities granted, the assessee did not appear for the hearing. Thus, the assessee had not been diligent in prosecuting the matter. 8. Under normal circumstances, this Court will not exercise its jurisdiction nor come to the aid and assistance of the assessee, who slept over his rights. However, we take a slightly different view in the instant case because the Tribunal thought fit to remand one of the issues to the Assessing Officer for re-adjudication. Only for such a reason, we are inclined to interfere with the order passed by the 4/6 https://www.mhc.tn.gov.in/judis/ TCA.No.130 of 2021 Tribunal. 9. In the result, the above tax case appeal is partly allowed, the findings rendered by the Tribunal in paragraphs 8 and 9 of the impugned order are set aside and the matter is remanded to the Assessing Officer for re-adjudication along with the issue pertaining to non deduction of tax at source, which has been remanded to the Assessing Officer by the Tribunal for re-adjudication. It is well open to the assessee to place all relevant materials to the Assessing Officer to substantiate their case. Consequently, the substantial questions of law raised are left open. No costs. 16.2.2021 To 1.The Income Tax Appellate Tribunal, 'D' Bench, Chennai. 2.The Assistant Commissioner of Income Tax, Non Corporate Ward 8(1), Chennai-34. RS 5/6 https://www.mhc.tn.gov.in/judis/ TCA.No.130 of 2021 T.S.SIVAGNANAM,J AND R.N.MANJULA,J RS TCA.No.130 of 2021 16.2.2021 6/6 https://www.mhc.tn.gov.in/judis/