J SUNDAR,CHENNAI vs. ACIT, CENTRAL CIR-3(2), CHENNAI

आयकर अपील�य अ�धकरण, ’सी’ �यायपीठ, चे�नई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH: CHENNAI �ी एन.आर.एस. गणेशन, �या�यक सद�य एवं �ी र!मत कोचर, लेखा सद�य के सम& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA Nos.3456 to 3462/Chny/2018 �नधा'रण वष' /Assessment Years: 2009-10 to 2015-16 v. Shri J. Sunder, The Asst. Commissioner of New No.21, Old No.7, Income Tax, Thirunavukarasu Street, Central Circle-3(2), Perambur, Chennai-600 011. No. 46, Mahatma Gandhi Road, Nungambakkam Chennai-600034 [PAN: CTYPS 3358 G ] (अपीलाथ*/Appellant) (+,यथ*/Respondent)

: Mr. G.Baskar, Adv. अपीलाथ* क- ओर से/ Appellant by : Mr. J.Pavithran Kumar, JCIT +,यथ* क- ओर से /Respondent by : 19.12.2019 सुनवाई क- तार�ख/Date of Hearing : 23.12.2019 घोषणा क- तार�ख /Date of Pronouncement आदेश / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER:

These seven appeals filed by assessee are directed against common appellate Order dated 25.09.2018 passed by learned Commissioner of Income Tax (Appeals)-19, Chennai (hereinafter called “the CIT(A)”), in ITA Nos.174 to 180/CIT(A)-19/2016-17 for assessment years (ays) 2009- 10 to 2015-16 respectively, the appellate proceedings before learned CIT(A) had arisen from separate assessment order(s) all dated 22.12.2016 passed by learned Assessing Officer (hereinafter called “the AO”) u/s.143(3) read with Section 153A of the Income-tax Act, 1961

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(hereinafter called “the Act”) for ay: 2009-10 to 2014-15 and u/s 143(3)

read with Section 153B(1)(b) of the 1961 Act for ay: 2015-16. Since

common issues are involved, all these appeals were heard together and

are adjudicated vide this common order passed by tribunal. First we shall

take up appeal of the assessee for ay: 2009-10 and since common issues

are involved wherein facts are similar, our decision for ay: 2009-10 shall

apply mutatis mutandis to the appeals filed by assessee for ay: 2010-11

to 2015-16.

with the Income-Tax Appellate Tribunal, Chennai (hereinafter called “the

Tribunal”) for ay: 2009-10 read as under:-

“1. The order of the CIT(A) is erroneous and opposed to law and facts to the extent it confirms the order of assessment. 2.1 The C!T(A) erred in confirming the addition of the rent of Rs.79.100/- unexplained income from house property. 2.2 The CIT(A) failed to consider the submissions made before him in the proper perspective. 3.1 The CIT(A) erred in confirming the levy of interest u/s.234A in so far as the Appellant has duly furnished the returns of income on time.

3.2 The CIT(A) equally went wrong in not confirming the levy of interest u/s.234B of the Income-tax Act since the Appellant could not have anticipated the additions. 4. Any other grounds that may be taken up at the time of hearing.”

3 These seven appeals are filed late by 23 days, the assessee has filed

petition for condonation of delay supported by an affidavit and prayers are

made to condone delay in filing these appeals late by 23 days beyond the

time stipulated u/s 253(5) of the 1961 Act . The assessee has shown his

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illness for not filing the appeal in time before the Tribunal. The Ld.DR did

not object to condone the delay in filing thee appeals late by 23 days,

After hearing both the parties and perusing the material on record, we

condone delay of 23 days in filing of this appeal late by assessee beyond

time stipulated for filing appeal with tribunal u/s 253(5) of the 1961 Act ,

in the interest of substantial justice. Whence technicalities are pitted

against substantial justice, the Courts will lean towards substantial justice

unless malafide is writ large on the part of litigant. Based on material on

record , we donot find any malafide on the part of the assessee in filing

this appeal late by 23 days beyond time stipulated u/s 253(5) of the 1961

Act and thus, keeping in view interest of substantial justice, we condone

this delay of 23 days and admit appeal filed by assesseea .

business of money lending, supply of labour, house property and other

sources. The assessee was searched by Revenue u/s.132 of the Income

Tax Act, 1961 on 28.01.2015 at the residence of the assessee at No.21/7,

Thirunavukarasu Street, Perambur, Chennai-600 011. The AO issued

notice dated 29.12.2015 u/s.153A of the 1961 Act to the assessee which

was duly served on the assessee on 01.01.2016. The assessee filed

return of income u/s.153A of the Act on 15.04.2016. It is an admitted

position now that the return of income u/s.153A of the Act pursuant to

search u/s.132 was filed beyond the time stipulated in the notice issued

by the AO. Even for AY 2015-16, the return of income was filed belatedly

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pursuant to notice issued u/s 153A of the 1961 Act, while no return of

income was earlier filed by assessee for ay: 2015-16 u/s.139(1) of the

Act. Thus, it is an admitted position that return of income(s) were filed

beyond the time stipulated in the notice issued by the AO u/s.153A of the

Act .

observed that no arguments were advanced by Ld.Counsel for the

assessee in support of Ground No.1 and this ground of appeal is general in

nature and in our considered view, does not require separate adjudication

and is hereby dismissed. We order accordingly.

assessee does not wish to press Ground Nos.2.1 & 2.2 and the same can

be dismissed as not been pressed. The learned counsel for the assessee

has made endorsement in the appeal memo as to the not pressing of the

ground number 2.1 and 2.2 .The Ld.DR did not object to the dismissal of

Ground Nos.2.1 & 2.2 as not been pressed. After hearing both the sides,

we dismiss Ground Nos.2.1 & 2.2. We order accordingly.

7.So far as Ground Nos.3.1 & 3.2 are concerned, the Ld.Counsel for the

assessee submitted that there is some computational errors in the interest

computed by AO u/s.234A & 234B of the Act, which needs to be rectified.

However, no details of the grievance as to computational error in

computing interest by the AO are filed before us to support the

contention. The Ld.DR submitted that as the assessee has filed return of

income beyond the time stipulated by the AO for filing of return of income

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u/s.153A of the Act, the AO has rightly computed interest as provided u/s

234A of the 1961 Act. The notice was issued by AO u/s.153A of the Act on

29.12.2015 which was duly served on assessee on 01.01.2016 asking

assessee to file return of income u/s.153A of the Act within 30 days but

the assessee has filed return of income on 15.04.2016 which is beyond

the time prescribed in the notice issued by the AO u/s.153A of the Act and

hence the learned DR claimed that the AO has rightly levied interest

u/s.234A . It was also submitted by learned DR that there was detection

income pursuant to search and the assessee filed return of income

perusant to search wherein these income detected during search were

declared and thereafter further the AO has made an additions to the

income of the assessee while framing assessment u/s 153A read with

Section 143(3) of the 1961 Act. It was submitted that these income’s

although detected in search conducted u/s 132 on 28.01.2015 but these

income relates to previous year relevant to ay: 2009-10 and hence

interest u/s 234B was rightly levied.

7.2 In our considered view , provisions of Sec. 234A & 234B are

consequential in nature and mandatory. Reference is drawn to decision of

Hon’ble Supreme Court in the case of CIT v. Anjum M.H.Ghaswala

reported in [2001] 119 Taxman 352 (SC) . The assessee has admittedly

filed its return of income beyond time stipulated in notice issued u/s 153A.

In the return of income filed by assessee in pursuant to notice issued u/s

153A , the assessee has declared income which was detected during

search operations . The AO has further enhanced the income while

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framing assessment u/s 153A read with Section 143(3) of the 1961 Act.

Reference is also drawn to decision of Hon’ble Madras High Court in the

case of A. Kuberan v. CCIT, Chennai reported in [2018] 89 taxmann.com

179 (Madras) , wherein Hon’ble Madras High Court has held that where

assessee has made disclosure only after detecting to search there is no

voluntary disclosure and hence assessee could not claim benefit of waiver

of interest u/s.234A , 234B and 234C by invoking Circular

No.400/29/2002-IT(B) dated 26.06.2006. We have observed that

admittedly assessee has filed return of income beyond the time stipulated

in the notice dated 29.12.2015 isused by AO u/s.153A of the Act asking

assessee to file return of income u/s.153A of the Act within 30 days. The

assessee filed return of income on 15.04.2016. The levy of interest

u/s.234A & 234B is mandatory and is consequential in nature. We have

also observed that the assessee has made disclosure in the return of

income filed u/s.153A of the Act which were not disclosed in the original

return of income filed u/s.139(1) of the Act and also there has been

further additions made by AO while framing assessment u/s.153A r.w.s.

143(3) of the Act. These incomes belong to previous year relevant to

impugned ay: 2009-10 which are now disclosed by assessee in return of

income filed with revenue pursuant to search and further additions are

also made by AO while framing assessment u/s 153A r.w.s. 143(3) of the

1961 Act. We hold levy of interest u/s 234A, 234B and 234C is mandatory

and consequential in nature. The AO i directed to look into the grievance

of the assessee as to error in computation of interest u/s 234A and 234B

ITA Nos.3456 to 3462/Chny/2018 :- 7 -: and pass orders in accordance with law. The assessee is directed to

appear before the AO and present its claim of error in the computation of

intere. Consequently, we allow for statistical purposes Ground Nos.3.1 &

3.2 raised by assessee in its appeal filed with tribunal for limited

verification by the AO as to computation aspect raised by assessee.

does not require aseperate adjudication.

No.3456/Chny/2018 for ay: 2009-10 stands partly allowed for statistical

purposes Our decision in ITA no. 3456/Chny/2018 for ay: 2009-10 shall

apply mutatis mutandis to ITA Nos.3457 to 3462/Chny/2018 for ay: 2010-

11 to 2015-16. All the appeals stand partly allowed for statistical purposes

as indicated above. We order accordingly.

Order pronounced on the 23rd day of December, 2019 in Chennai.

Sd/- Sd/- (एन.आर.एस. गणेशन) (र!मत कोचर) (N.R.S. GANESAN) (RAMIT KOCHAR) �या�यक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER

चे�नई/Chennai, 1दनांक/Dated: 23rd December, 2019. TLN आदेश क- +�त!ल2प अ3े2षत/Copy to: 4. आयकर आयु4त/CIT 1. अपीलाथ*/Appellant 5. 2वभागीय +�त�न�ध/DR 2. +,यथ*/Respondent 6. गाड' फाईल/GF 3. आयकर आयु4त (अपील)/CIT(A)