SHRI PERIASAMY VENKATESH KUMAR,,CHENNAI vs. ITO, NCW - 8 (5),, CHENNAI

The assessee filed this appeal against the order of the Commissioner of Income Tax (Appeals)-9(I/C), Chennai in dated 30.11.2018 for the assessment year 2010-11.

The appeal is filed with a delay of 102 days . The assessee filed petition for condonation of delay. It was submitted that since the assessee’s income chargeable to tax has not executed the taxable limit for this assessment year. Since, the assessment was reopened after a long time, the assessee made contact with various agencies to obtain the copies of various statements and other evidences which has taken a lot of time, due to which the assessee could not file the appeal in time. Therefore, the delay is not wilful and wanton. It was also submitted that if the delay is not condoned, it would cause irreparable loss to the assessee and hence, it was pleaded to condone the delay and render justice.

We heard the rival submissions and condone the delay.

Shri. Periasamy Venkatesh Kumar, the assessee, an individual, did not file his return of income for assessment year 2010-11. On the basis of NMS information, the AO issued a notice u/s. 148 and called for various particulars. Since, the assessee has not complied with the requirements and the sources for cash deposits were not explained, the AO assessed the cash deposit of Rs. 3,28,400/- as an unexplained cash deposit. Further, from the information obtained he found that the assessee entered into the share transaction of Rs. 20,000/- or more for 126 times, towards which the assessee could not furnish any details.

Aggrieved, the assessee filed this appeal. The Ld. AR submitted that the assessee did not file return of income as his income chargeable to tax has not exceeded the taxable limit for the assessment year 2010-

The assessee had traded in shares for a short period and wound up subsequently. Since, the assessment was re-opened and the particulars were called for, during September, 2017, very belatedly, the assessee could not get any documentary evidence from his bank, share broking agent etc. His efforts to reach various agencies to source data to facilitate the assessment failed which caused the ex-parte assessment also. While computing the income, the AO has considered only the sale of share without taking into account the purchase value and he assessed the amount deposited by the assessee out of his own sources and savings. In the above facts and circumstance, the lower authorities should have given reasonable opportunity to the assessee which they have not furnished. Therefore, the Ld. AR pleaded that the assessee may be given an opportunity to explain the transactions. Per contra, the Ld. DR supported the orders of the lower authorities.

We heard the rival submissions and gone through the relevant material. It is clear from the above that the assessee had made cash deposits of Rs. 3,28,400/- and share transaction of Rs. 8,74,570/-. The assessee pleads that the income chargeable to tax has not exceeded the taxable limit in his case. In such case, the assessee had to put before the income tax authority proper material which would enable them to come to a conclusion (35 ITR 312 SC). In this case, the assessee pleaded that since, he is an individual and having closed the business, he could not get any documents from his bank, share broking agent etc. and submitted that an opportunity may be granted to explain the impugned transactions before the AO. Since, the onus is on the assessee to place the relevant material before the AO, considering the facts and circumstances of the case, we deem it fit to remit this issue back to the AO for a fresh examination. The assessee shall place all materials on which he relies in support of his contentions before the Assessing Officer and comply with the requirements of the AO as per law. The AO is free to conduct appropriate enquiry as deemed fit. However, the AO shall provide effective opportunity to the assessee on the material etc., that is to be used against the assessee, if any, and then pass suitable order in accordance with law. Therefore, the assessee’s appeal is treated as partly allowed for statistical purposes.

In the result, the assessee’s appeal is treated as partly allowed for statistical purposes.