B.KAMARAJ,ERODE vs. ITO, ERODE

Both the appeal of the two independent assessee are directed against the respective order of the Principal CIT for the assessment year 2010-11.

There is a delay of 139 days in filing both the appeals before this Tribunal. Shri S.Sridhar, the learned counsel for the assessee submitted that the assessee handed over the files to the chartered accountant for filing the appeal before this Tribunal. The Chartered Accountant however suffered heart attack and he was stented twice. Therefore, he could not file the appeal within the time prescribed. In the meantime, the chartered accountant’s father Shri Thimmi Chetty also expired.

We heard Shri Pathlavath Peerya, the learned representative for the department also. According to the learned representative, even though the assessee has produced a medical certificate to show that the chartered account was suffered heart attack and who was stented twice that cannot be a reason for the assessee for not filing the appeal before this Tribunal. Therefore, there is no reasonable cause on the part of the assessee in not filing appeal within the time provided under the Act.

We have considered the rival submissions on either side and also perused the material available on record. After receipt of the order from the CIT(A), the assessee claims that the same was handed over to the chartered accountant for preparing the appeal. Unfortunately, the chartered accountant suffered heart attack. He was stented twice.

Now coming to the merit of the appeal, Shri S.Sridhar, the learned counsel for the assessee submitted that the assessing officer consequent to the survey operation under Section 133A completed the assessment by making additions to the gross profit at the rate of 12% in the case of Shri G.Balakrishnan. According to the learned counsel, Shri G.Balakrishnan, is the father of Mr.B.Kamaraj, the assessee in ITA No.2069/Mds/2015. The Administrative Commissioner found that the CIT(A) by his order dated 14.11.2014 directed the assessing officer to adopt 6% as gross profit instead of 12% adopted by the assessing officer. The learned counsel further clarified that no books of account was maintained by the assessee. The entire material found during the course of survey operation was impounded by the revenue authorities. The copies of the impounded documents were not furnished to the assessee.

We heard Shri Pathlavath Peerya, the learned department representative also. The learned department representative very fairly submitted that the copy of the impounded documents can be given to the assessee so that the assessee can respond to the queries raised by the assessing officer. Therefore, the learned department representative very fairly submitted that the matter may be remitted back to the file of the assessing officer for re-consideration.

We have considered the rival submissions on either side and also perused the material available on record. Admittedly, consequent to the survey operation under Section 133A, the assessing officer framed the assessment order by estimating the gross profit at 12%. It is not known how the assessing officer estimated the turnover. The assessee has not maintained any books of account. Apparently, the assessing officer estimated the turnover on the basis of the material found during the course of survey operation which was impounded. Therefore, this Tribunal is of the considered opinion that the documents impounded by the assessing officer during the course of survey operation needs to be furnished to the assessee so that the assessee could understand on what basis the turnover and gross profit was estimated.

When there was a survey operation under Section 133A and the assessment proceedings were completed on the basis of the materials found during the course of survey operation, this Tribunal is of the considered opinion that the materials, documents which was found during the survey operation has to be furnished to the assessee in the course of the assessment proceedings. Unfortunately, the revenue authorities could not furnish the copies of the impounded documents found during the survey operation. Therefore, the assessee could understand on what basis the turnover and gross profit was estimated. This Tribunal is of the considered opinion that when the impounded documents was relied upon by the revenue authorities for estimating turnover on gross profit, copies of the impounded documents are to be furnished to the assessee.

In the result, both the appeals of the assessee are Allowed for Statistical Purposes.