SHRI G.K. SAMPATH,CHENNAI vs. ACIT, CHENNAI

आयकर अपीलीय अिधकरण, ‘डी’ "यायपीठ, चे"ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI "ी एन.आर.एस. गणेशन, "याियक सद"य एवं "ी िड.एस. सु"दर "सह, लेखा सद"य केसम" BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.3170/Mds/2016 िनधा"रण वष" / Assessment Year : 2007-08 Shri G.K. Sampath, The Asst. Commissioner of No.107, Paneer Nagar, 3-2/1, v. Income Tax, Mogappair, Non-Corporate Ward-7 (1), Chennai – 600 037. Chennai – 600 034. [PAN: ABEPS 2852 F] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओर से/Appellant by : Shri G. Seetharaman, CA ""यथ" क" ओर से/Respondent by : Shri B. Sahadevan, JCIT सुनवाई क" तारीख/Date of Hearing : 03.01.2017 घोषणा क" तारीख/Date of Pronouncement : 13.01.2017 आदेश /O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER:

This is an appeal filed by the assessee against the Order dated 31.08.2016 of Commissioner of Income Tax (Appeals)-7, Chennai, in for the AY 2007-08. I.T.A. No.3170/Mds/2016 :- 2 -:

2.0 The assessee filed the return of income declaring total income of ₹7,04,523/- on 02.11.2007. The assessment was completed under Section 143 (3) of the Income Tax Act, 1961 (in short ‘the Act’) on 30.12.2009 determining the total income of ₹24,03,170/-. Subsequently, the case was reopened by issue of notice Section 147 of the Act and completed the assessment under Section 143 (3) read with Section 147 by an order dated 19.03.2015 on total income of ₹36,03,170/-. Assessing Officer made addition of ₹12,00,000/- relating to the cost of construction claimed by the assessee. The assessee received the construction cost from Shri Bhavani Maheshkumar ₹35 lakhs and ₹32 lakhs from Shri P. Babujee respectively and deducted a sum of ₹6 lakhs each from both the parties towards land cost from the construction receipts and admitted the resultant amount in the return of income. The Assessing Officer has omitted to consider the amount of ₹12 lakhs while completing the original assessment. Therefore, the assessment was reopened u/s.147 and made the addition of ₹12 lakhs in the reassessment on 19.03.2015. Aggrieved by the order of the Assessing Officer, the assessee went on appeal before the CIT (Appeals) and the CIT (Appeals) confirmed the order of the Assessing Officer.

3.0 Shri G. Seetharaman appeared for the assessee. The assessee filed an additional ground of appeal challenging the validity of the reopening of the assessment without any fresh material being collected by the :- 3 -:

Assessing Officer. Since the issue goes to the root of the assessment, requested for admission of the additional ground and argued that reopening of assessment is bad in law since it is reopened after expiry of four years without any additional material before the Assessing Officer.

The Ld.AR of the assessee argued that the original assessment was completed u/s.143(3) after verifying all the details and no fresh material has been collected by the assessing officer and there is no failure on the part of the assessee hence the reopening of assessment was bad in law.

On the other hand the Ld.D.R. argued that this issue has neither raised before the AO nor before the Ld.CIT(A) and require verification of the facts. Ld.D.R contended that the issue should go back to the file of the A.O to give finding on reopening assessment.

4.0 We heard the rival submissions and perused the material placed on record. The Ld.AR of the assessee has raised the additional ground regarding the reopening of assessment which goes to the root of the issue. The additional ground raised by the Ld.AR is admitted. On going through the assessment order and the grounds of appeal filed before the CIT(A) it is seen that the assessee has not raised this issue before lower authorities and the lower authorities have not gone in to this issue.

Therefore we are of the considered opinion that the issue should be remitted back to the file of the Assessing Officer for examining the additional ground raised by the assessee. Accordingly, we remit back the :- 4 -: matter to the file of the Assessing Officer with a direction to re-examine the issue and decide the matter afresh on merits.

5.0 In the result, the appeal of the assessee is partly allowed.

Order pronounced in the open court on 13th January, 2017 at Chennai. (एन.आर.एस. गणेशन) ("ड.एस. सु"दर "संह) (N.R.S. GANESAN) (D.S.SUNDER SINGH) "या"यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER