K.balasubramaniam v. The Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.02.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal Nos.12 & 13 of 2013 K.Balasubramaniam... Appellant in both T.C.AsVs. The Commissioner of Income Tax,No.3, Gandhi Road,Salem – 636 007.... Respondent in both T.C.AsT.C.A.No.12 of 2013 filed under Section 260A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunal, Madras "C" Bench, dated 26.07.2012 passed inI.T.A.No.637/Mds/2011. T.C.A.No.13 of 2013 filed under Section 260A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunal, Madras "D" Bench, dated 24.09.2009 passed inM.A.No.266/Mds/2011 in I.T.A.No.659/Mds/2009, against the orderof the Commissioner of Income Tax (Appeals)-Salem, made in ITANo.64/05-06 dated 09/02/2011 and 19.02.2009 against the order ofthe Income Tax Officer, Ward -II(3), Salem made in PAN/GIRNo.23PB0051/II(3) SLM dated 30.03.2005 for the Assessment Year. For Appellant : Mr.T.Vasudevan(in both T.C.As) For Respondent : Ms.V.Pushpa, Standing Counsel(in both T.C.As) The appeal in T.C.A.No.12 of 2013 filed by the assesseeunder Section 260A of the Income Tax Act, 1961 ('the Act' forbrevity), is directed against the order dated 26.07.2012 passedby the Income Tax Appellate Tribunal, Madras "C" Bench, ('theTribunal' for brevity) in I.T.A.No 637/Mds/2011 for the https://hcservices.ecourts.gov.in/hcservices/ assessment years 2003-04. Appeal in T.C.A.No.13 of 2013 filed bythe assessee under Section 260A of the Income Tax Act, 1961directed against the order dated 24.09.2009 passed by the IncomeTax Appellate Tribunal, Madras "D" Bench, ('the Tribunal' forbrevity) in M.A.No.266/Mds/2011 in I.T.A.No.659/Mds/ 2009 forthe assessment years 2003-04. 2.The appeal in T.C.A.No.12 of 2013 was admitted on21.01.2013 on the following Substantial Questions of Law: “1)Whether on the facts and in the circumstancesof the case, the Tribunal was justified in upholdingthe order of CIT (A) under Section 154 dated09.02.2011 when the CIT (A) has not considered anddecided the issues raised before him in his orderdated 19.02.2009 as laid down by this Court in 329 ITR591? 2)Whether the Tribunal was right in deleting withthe merits of the case when the issue before it wasthe order passed by CIT (A) in the Section 154petition on its maintainability? 3)Whether on the facts and in the circumstancesof the case, the Tribunal was justified in law inconfirming the addition of Rs.19,48,400/- asunexplained investment of the assessment year 2003-04when even as per AO, the impounded books show onlyadvances of Rs.3,14,500/- in this year? 4)Whether the order of the Tribunal confirmingthe addition was perverse, especially in the contextof reliance on books impounded in survey which showthe cumulative balance of advances over the years asof Rs.19.49 lakhs and not as advances pertaining tothis year alone?” 3.The appeal in T.C.A.No.13 of 2013 was admitted on21.01.2013 on the following Substantial Questions of Law: “1)Whether the Tribunal was justified indismissing the M.A., when the Tribunal in its orderdated 24.09.2009 had not considered and decided theissues raised before it and hence constitutes amistake as laid down by this Court in 329 ITR 591? 2)Whether on the facts and in the circumstancesof the case, the Tribunal was justified in law inconfirming the addition of Rs.19,48,400/- asunexplained investment of the assessment year 2003-04when even as per AO, the impounded books show onlyadvances of Rs.3,14,500/- in this year? 3)Whether the order of the Tribunal confirming the addition was perverse, especially in the contextof reliance on books impounded in survey which showthe cumulative balance of advances over the years asof Rs.19.48 lakhs and not as advances pertaining tothis year alone? 2)Whether on the facts and in the circumstancesof the case, the Tribunal was justified in law inconfirming the addition of Rs.19,48,400/- asunexplained investment of the assessment year 2003-04when even as per AO, the impounded books show onlyadvances of Rs.3,14,500/- in this year? 3)Whether the order of the Tribunal confirming the addition was perverse, especially in the contextof reliance on books impounded in survey which showthe cumulative balance of advances over the years asof Rs.19.48 lakhs and not as advances pertaining tothis year alone? 4)Whether the Tribunal was justified inconfirming the addition based on the impounded booksrecording the advances till 13.01.2003, which are partof the regularly maintained books of accounts andhence, the cumulative balance of advances cannot beadded as the unexplained investment?” 4.We have heard Mr.T.Vasudevan, learned counsel for theappellant/assessee and Mv.Pushpha, learned Standing Counsel forthe respondent/Revenue. 5.It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 6.We are informed by the learned counsel for the appellant/assessee that the assessee had already been issued with Form – 3on 30.01.2021 in respect of T.C.A.No.12 of 2013 and seekspermission of this Court to withdraw the said appeal. Thelearned counsel for the appellant further submitted that sinceForm – 3 has been issued on 30.01.2021 in respect of T.C.A.No.12of 2013, the consequential appeal in T.C.A.No.13 of 2013 mayalso be dismissed as withdrawn. 7.In view of the submission made by the learned counsel forthe appellant, both the Tax Case Appeals stand dismissed aswithdrawn. No costs. //True Copy// va To 1. The Income Tax Appellate Tribunal, Madras "C" Bench.2. The Income Tax Appellate Tribunal, Madras "D" Bench. 3. The Commissioner of Income Tax, No.3, Gandhi Road, Salem – 636 007.4. The Commissioner of Income Tax (Appeals), Salem.5. The Income Tax Officer, Ward-II (3), Salem.+1cc to Mr.M.Swaminathan, Advocate Sr.6401Tax Case Appeal Nos.12 & 13 of 2013nmI[co]srg 03/03/2021