Madras High Court
Shri.T.E.Abinesh vs The Assistant Commissioner Of on 16 February, 2021
TCA.No.130 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.2.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Tax Case Appeal No.130 of 2021
Shri.T.E.Abinesh, Abi & Abi
Group of Companies ...Appellant
Vs
The Assistant Commissioner of
Income Tax, Non Corporate Ward
8(1), Chennai-34. ...Respondent
APPEAL under Section 260A of the Income Tax Act, 1961 against
the order dated 02.12.2019 passed by the Income Tax Appellate
Tribunal, Madras 'D' Bench, Chennai made in I.T.A.No.2560/Mds/2018
for the assessment year 2013-14.
For Appellant: Mr.A.S.Sriraman for
Mr.Shanmugam Rajasekar
For Respondent : Mr.Karthik Ranganathan, SC
Judgment was delivered by T.S.SIVAGNANAM,J
This appeal has been filed by the Revenue under Section 260A of
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TCA.No.130 of 2021
the Income Tax Act, 1961 ('the Act' for brevity) challenging the order
dated 02.12.2019 made in I.T.A.No.2560/Mds/2018 on the file of the
Income Tax Appellate Tribunal, Chennai, 'D' Bench ('the Tribunal' for
brevity) for the assessment year 2013-14.
2. The Revenue has filed this appeal by raising the following
substantial questions of law:
“i. Whether the Appellate Tribunal is
justified in law in confirming the ex parte order
in sustaining the additions made on account of
cash deposits made under Section 68 of the
Act as well as the disallowance of travel
expenses under Section 37(1) of the Act by
recording perverse finding of facts in the
impugned order ?
ii. Whether the Appellate Tribunal is
justified in law in confirming the addition made
by invoking the provisions in Section 68 of the
Act overlooking the explanations made by the
appellant and the details provided during the
course of the assessment by recording
perverse finding of facts in the impugned
order?
iii. Whether the Appellate Tribunal is
justified in law in confirming the disallowance
of travel expenditure under Section 37(1) of
the Act made only on account of absence of
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TCA.No.130 of 2021
nexus overlooking the explanation and details
produced during the course of the assessment
by recording perverse finding of facts in the
impugned order ? And
iv. Whether the Appellate Tribunal is
justified in law in not deciding/adjudicating the
issues raised before them without confirming
the ex parte order in recording the perverse
finding of fact with regard to absence of
evidence for the issues under consideration?”
3. We have heard Mr.A.S.Sriraman, learned counsel appearing on
behalf of Mr.Shanmugam Rajasekar, learned counsel on record for the
appellant/assessee and Mr.Karthik Ranganathan, learned Standing
Counsel appearing for the respondent/Revenue.
4. The assessee is aggrieved by the order passed by the Tribunal
in deciding two issues out of three issues against the assessee and
confirming the addition made by the Assessing Officer on account of
traveling expenses and cash deposits.
5. With regard to the issue pertaining to non deduction of tax at
source, the Tribunal remanded the matter to the Assessing Officer for
re-adjudication in line with the decision of the Hon'ble Supreme Court
in the case of Hindustan Coca Cola Beverages (P) Ltd. Vs. CIT
[reported in (2007) 293 ITR 226].
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TCA.No.130 of 2021
6. It is the submission of the learned counsel appearing for the
appellant that before the Commissioner of Income Tax (Appeals)-9,
Chennai [for short, the CIT(A)], the assessee could not appear for
reasons beyond his control, that it was an ex parte order and that the
Tribunal, having remanded the matter to the Assessing Officer for a
fresh consideration with regard to the issue pertaining to non
deduction of tax at source, could have afforded one more opportunity
to the assessee to go before the Assessing Officer and establish that
the addition made on account of travel expenses and cash deposits as
done by the Assessing Officer was incorrect.
7. As could be seen from the order passed by the CIT(A) dated
27.6.2018, none appeared for the assessee when the matter was
heard. In fact, it was recorded that in spite of numerous opportunities
granted, the assessee did not appear for the hearing. Thus, the
assessee had not been diligent in prosecuting the matter.
8. Under normal circumstances, this Court will not exercise its
jurisdiction nor come to the aid and assistance of the assessee, who
slept over his rights. However, we take a slightly different view in the
instant case because the Tribunal thought fit to remand one of the
issues to the Assessing Officer for re-adjudication. Only for such a
reason, we are inclined to interfere with the order passed by the
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TCA.No.130 of 2021
Tribunal.
9. In the result, the above tax case appeal is partly allowed, the
findings rendered by the Tribunal in paragraphs 8 and 9 of the
impugned order are set aside and the matter is remanded to the
Assessing Officer for re-adjudication along with the issue pertaining to
non deduction of tax at source, which has been remanded to the
Assessing Officer by the Tribunal for re-adjudication. It is well open to
the assessee to place all relevant materials to the Assessing Officer to
substantiate their case. Consequently, the substantial questions of law
raised are left open. No costs.
16.2.2021
To
1.The Income Tax Appellate Tribunal, 'D' Bench, Chennai.
2.The Assistant Commissioner of Income Tax, Non Corporate Ward
8(1), Chennai-34.
RS
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TCA.No.130 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
RS
TCA.No.130 of 2021
16.2.2021
https://www.mhc.tn.gov.in/judis/
