G.BALAKRISHNAN,ERODE vs. ITO, ERODE

आदेश /O R D E R

PER N.R.S. GANESAN, JUDICIAL MEMBER:

Both the appeal of the two independent assessee are directed

against the respective order of the Principal CIT for the assessment year

2010-11.

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.

Therefore, the chartered accountant could not file the appeal before this

Tribunal within the time. After that, the assessee took steps to file the

appeal through the present counsel. Hence, the delay was beyond the

control of the assessee. Therefore, the learned counsel submitted that

the delay of 139 days may be condoned.

3 I.T.A. No.2069 & 2071/ Mds/2015

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.

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.

Moreover, the chartered accountant father also expired in the meantime.

This Tribunal is of the considered opinion that the assessee initiated

prompt action for filing the appeal before this Tribunal and due to

unforeseen incident took place in the family of the chartered accountant

and in fact, the chartered accountant himself suffered heart attack and he

was stented twice prevented the chartered accountant himself from filing

the appeal in time. This Tribunal is of the considered opinion that the

assessee was prevented from filing the appeal before this Tribunal within

the time prescribed. Therefore, there is no negligence on the part of both

4 I.T.A. No.2069 & 2071/ Mds/2015

the assessees in taking steps to file the appeal. Accordingly, the delay of

139 days in filing the appeal is hereby condoned and both the appeals of

the assessee are admitted.

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.

In spite of repeated requests, a copy of the impounded document was

not produced to the assessee. Therefore, the assessee was not in a

position to contest the case either before the assessing officer or before

the administrative commissioner. Therefore, the learned counsel

submitted that the assessing officer may be directed to furnish copies of

the documents impounded during the course of survey operation under

5 I.T.A. No.2069 & 2071/ Mds/2015

Section 133A within the time limit that may be fixed by this Tribunal and

thereafter decide the issue afresh in accordance with law.

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.

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.

6 I.T.A. No.2069 & 2071/ Mds/2015

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.

Accordingly, both the authorities below are not justified in estimating the

gross profit and the total turnover. Therefore, the orders of both the

authorities below are set aside and the entire issue is remitted back to

the file of the Assessing Officer. The Assessing Officer shall re-examine

the matter afresh and furnish the copies of the material found and

impounded during the survey operation under Section 133A to the

assessee and thereafter decide the same in accordance with law. It is

made clear that the copies of the documents found and impounded

during the survey operation and other material available on record shall

be furnished to the assessee within four weeks from the date of receipt of

7 I.T.A. No.2069 & 2071/ Mds/2015

copy of this order by the assessing officer. Thereafter, the assessing officer shall complete the assessment in accordance with law after giving reasonable opportunity to the assessee to respond to the impugned documents.

Order pronounced on 28th October, 2016 at Chennai.

Sd/- Sd/- (�ड.एस. सु�दर �संह) (एन.आर.एस. गणेशन) (D.S. Sunder Singh) (N.R.S. Ganesan) लेखा सद�य/Accountant Member �या�यक सद�य/Judicial Member

चे�नई/Chennai, �दनांक/Dated, the 28th October, 2016.

sp. आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A) 4. आयकर आयु�त/CIT, 5. �वभागीय ��त�न�ध/DR 6. गाड� फाईल/GF.