SHRI K.UMAIR AHMED vs. THE ASSISTANT COMMISSIONER O

TCA No. 611 of 2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.08.2019 CORAM: THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM AND THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN Tax Case Appeal No. 611 of 2019 and CMP.No. 17945 of 2019 Shri.K.Umair Ahmed ... Appellant Vs The Assistant Commissioner of Income Tax, Non Corporate Circle – 6(1), Chennai – 600 006. ... Respondent Tax Case Appeals filed under Section 260-A of the Income Tax Act, 1961, against the order of Income Tax Appellate Tribunal Chennai 'B' Bench, dated 28.02.2018 in ITA Nos.2110 & 2111/Mds/2017 and 2548/Mds/2017 for the Assessment Years 2003-04, 2004-05 and 2011-12. For Appellant : Mr.A.S.Sriraman For Respondent : Mrs.R.Hemalatha,SSC ****** 1/6 http://www.judis.nic.in TCA No. 611 of 2019 JUDGMENT [Judgment was made by T.S.SIVAGNANAM, J] This appeal by the assessee filed under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) is directed against the order of Income Tax Appellate Tribunal Chennai 'B' Bench, dated 28.02.2018 in ITA No.2548/Mds/2017 for the Assessment Years 2011-12. 2. The above tax case appeal is admitted on the following substantial questions of law: “(i) Whether the Appellate Tribunal is correct in approving the application of Section 68 of the Act to sustain the addition made by the respondent/the Assessing Officer on the rejection of the explanation offered by the Appellant in relation thereto? (ii) Whether the Appellate Tribunal is correct in sustaining the addition invoking Section 68 of the Act despite the compliance of the three ingredients statutorily mandated concurrently to establish the genuineness of the stand of the Appellant in attempting for purchase of land for factory? And 2/6 http://www.judis.nic.in TCA No. 611 of 2019 (iii) Whether the Appellate Tribunal is correct in sustaining the additions made invoking Section 68 of the Act by recording perverse findings of facts?” 3. We have heard Mr.A.S.Sriraman, learned counsel for the appellant/assessee and Mrs.R.Hemalatha, learned Senior Standing Counsel accepting notice for the respondent/Revenue. 4.It is the submission of the learned counsel for the appellant/assessee that the Tribunal has failed to consider the materials, which were produced by the assessee before the CIT(A) on remand to establish that the transaction done by the assessee in cash was genuine and since the immovable property did not materialize the cash had to be returned which were returned between 2009 and 2011 and to establish the same the assessee had produced one Dr.M.S.Kamesh Kumar, who is a Dental Surgeon settled abroad, who is stated to have facilitated the purchase of immovable property, since his father was the Village Sarpanch of a village in Tiruvallur District. This theory which was put forth by the assessee was not established by the assessee before the Assessing Officer. 3/6 http://www.judis.nic.in TCA No. 611 of 2019 5. It is not the case of the assessee that Dr.M.S.Kamesh Kumar was the vendor of the property, a sum of Rs.1.40 Crores said to have been handed over to him to be paid to the prospective vendors, this is stated to have been done in the year 2007. The assessee's further case is that the real estate deal did not materialize and Dr.M.S.Kamesh Kumar facilitated the getting back of the advance from those vendors and this were returned to the assessee in cash between 2009 and 2011. This theory which was propounded by the assessee before the Assessing Officer was examined for its factual correctness and found to be not acceptable. This was re-examined by the CIT(A), who have concurred with the Assessing Officer. The Tribunal also agreed with the said finding. 6. The learned counsel pointed out that the Tribunal in paragraph 13.1 of the impugned order has rendered an erroneous finding by holding that the assessee did not produce even a single person before the Assessing Officer and that the assessee had produced Dr.M.S.Kamesh Kumar. The finding of the Tribunal is that the assessee did not produce any of the prospective vendors because 4/6 http://www.judis.nic.in TCA No. 611 of 2019 Dr.M.S.Kamesh Kumar was not the vendor and it is stated by the assessee that he is the facilitator. 7. Therefore, we find that the finding rendered by the Tribunal in paragraph 13.1 is correct. Above all, the entire matter revolves around the factual aspect which has not been established by the assessee to the satisfaction of the Assessing Officer for being entitled to the relief under Section 68 of the Act. We find no good grounds to interfere with the order of the Tribunal and also held that no substantial question of law arises for consideration in this appeal. 8. In the result, the appeal filed by the assessee is dismissed and the substantial questions of law are decided against the assessee. No costs. Consequently, connected miscellaneous petition is closed. [T.S.S., J] [V.B.S., J] 27.08.2019 Index: Yes/No Internet: Yes mp/cse 5/6 http://www.judis.nic.in TCA No. 611 of 2019 T.S.SIVAGNANAM, J. and V.BHAVANI SUBBAROYAN, J. mp Tax Case Appeal No. 611 of 2019 27.08.2019 6/6 http://www.judis.nic.in