Chithra Multispeciality Hospital, Pathanamthitta V. DCIT, Kollam

CO 55/COCH/2008

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7601 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 2 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-09-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Keywords: Additional evidence

Judgement Text

1 ITA NO. 692 & 693/COCH/2008 ITA NO. 682/COCH/2008 COS 53, 54 & 55/COCH/2008 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 692/COCH/2008 - ASSESSMENT YEAR 2005-06 I.T.A NO. 693/COCH/2008 - ASSESSMENT YEAR 2006-07 THE DY.CIT, CENT.CIR VS M/S CHITRA MULTI SPECIAL ITY HOSPITAL KOLLAM PANDALAM PAN : AAEFC4054C (APPELLANT) (RESPONDENT) C.O. NOS 54&55/COCH/2008 (ARISING OUT OF ITAS NO.692 & 693/COCH/2008) (ASSESSMENT YEARS 2005-06 & 2006-07) CHITRA MULTI SPECIALITY HOSPITAL VS THE DY.CIT, CE NT.CIR PANDALAM KOLLAM (CROSS OBJECTOR) (RESPONDENT) I.T.A. 682/COCH/2008 (ASSESSMENT YEAR 2005-06) THE DY.CIT, CENT.CIR. VS SHRI K SHAJI KOLLAM KUZHIYILETH HOUSE MANTHUKA, KULANADA, PANDALAM PAN : AQAPK7935Q (APPELLANT) (RESPONDENT) C.O. NO.53/COCH/2008 (ARISING OUT OF I.T.A. 682/COCH/2008) (ASSESSMENT YEAR 2005-06) SHRI K SHAJI VS DY.CIT, CENT.CIR KULANADA, PANDALAM KOLLAM (CROSS OBJECTOR) (RESPONDENT) 2 ITA NO. 692 & 693/COCH/2008 ITA NO. 682/COCH/2008 COS 53, 54 & 55/COCH/2008 REVENUE BY : MS. A.S. BINDHU ASSESSEE BY : NONE DATE OF HEARING : 12-09-2012 DATE OF PRONOUNCEMENT : 18-09-2012 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE APPEALS AGAINST THE ORDE RS OF THE COMMISSIONER OF INCOME-TAX(A) IN RESPECT OF TWO INDEPENDENT TAXPA YERS FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07. THE TAXPAYERS HAVE FILED THE CROSS OBJECTIONS. SINCE COMMON ISSUES ARE INVOLVED, WE HEARD THE APPEALS TO GETHER AND ARE DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. NO ONE APPEARED FOR THE TAXPAYERS WHEN THE APPEA LS AND THE CROSS OBJECTIONS WERE TAKEN UP FOR HEARING. HOWEVER, THE LD.REPRESENTATIVE FOR THE TAXPAYERS HAS FILED APPLICATION SEEKING ADJOURNMENT OF THE CASE BY A MONTH ON THE GROUND THAT THERE IS A RELIGIOUS FUNCTION IN TH E FAMILY. RELIGIOUS FUNCTION MAY BE CONCLUDED IN A DAY OR TWO. THERE CANNOT BE A RE LIGIOUS FUNCTION CONTINUOUSLY FOR A MONTH. ON THE EARLIER OCCASION ALSO, THE LD. REPRESENTATIVE SOUGHT ADJOURNMENT ON THE GROUND THAT HE HAS TO APPEAR BEF ORE THE COMMISSIONER OF INCOME-TAX(A) AT CALICUT. MOREOVER, THE APPEALS ARE PENDING FROM THE YEAR 2008. THEREFORE, IT MAY NOT BE NECESSARY TO GIVE ANY FURT HER ADJOURNMENT. ACCORDINGLY THE APPLICATION FILED BY THE LD.REPRESENTATIVE FOR THE TAXPAYERS FOR ADJOURNMENT IS REJECTED. 3 ITA NO. 692 & 693/COCH/2008 ITA NO. 682/COCH/2008 COS 53, 54 & 55/COCH/2008 3. WE HEARD SMT. A.S. BINDHU, THE LD.DR. THE LD.DR SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX(A) HAS ADMITTED THE CONFI RMATION LETTER AS AN ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE I.T. RULES, 1962 WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME. THEREFORE, ACCORDING TO THE LD.DR THE MATTER NEEDS TO BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINATION. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IN RESPECT OF SOURCE OF INVESTMENT OF CONSTRUCTION, THE TAXPAYERS CLAIMED BEFORE THE COMMISSIONER OF IN COME-TAX(A) THAT THEY HAVE TAKEN LOAN FROM CLOSE RELATIVE. HOWEVER, NO MATERIA L WAS PRODUCED BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THE CLAIM OF LOAN . THE COMMISSIONER OF INCOME- TAX(A) WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESS ING OFFICER ACCEPTED THE SAME. THE COMMISSIONER OF INCOME-TAX(A) HAS NOT CONDUCTED ANY INDEPENDENT EXAMINATION OF THE SAME. RULE 46A OF THE INCOME-TAX RULES, 1962 CLEARLY SHOWS THAT WHENEVER ADDITIONAL EVIDENCE IS FILED BEFORE T HE FIRST APPELLATE AUTHORITY HE HAS TO GIVE AN OPPORTUNITY TO THE ASSESSING OFFICER TO CONTROVERT THE CONTENTS IN THE ADDITIONAL EVIDENCE. IF THE COMMISSIONER OF IN COME-TAX(A) FINDS THAT THE ADDITIONAL EVIDENCE IS NECESSARY FOR DISPOSAL OF TH E APPEAL HE HAS TO EXAMINE THE SAME INDEPENDENTLY AND RECORD HIS OWN FINDING. IN THE CASE BEFORE US, THE COMMISSIONER OF INCOME-TAX(A) HAS NOT GIVEN ANY OPPO RTUNITY TO THE ASSESSING OFFICER NOR DID HE CONDUCT ANY INDEPENDENT ENQUIRY HIMSELF. THE COMMISSIONER OF INCOME-TAX(A) HAS SIMPLY ADMITTED ADDITIONAL EVI DENCE IN SUPPORT OF THE CLAIM OF LOAN. THEREFORE, THIS TRIBUNAL IS OF THE OPINIO N THAT THERE IS A CLEAR VIOLATION OF RULE 46A OF THE I.T. RULES, 1963. THEREFORE, AS RI GHTLY SUBMITTED BY THE LD.DR, THE MATTER NEEDS TO BE EXAMINED BY THE ASSESSING OFFICE R. ACCORDINGLY, THE ORDERS OF 4 ITA NO. 692 & 693/COCH/2008 ITA NO. 682/COCH/2008 COS 53, 54 & 55/COCH/2008 THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE O F COST OF CONSTRUCTION AND SOURCE FOR CONSTRUCTION IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE IN THE LIGHT OF THE MATERIAL FILED BEFORE THE COMMISSIONER OF INCOME-TAX(A) AND THAT MAY BE FI LED BEFORE THE ASSESSING OFFICER BY THE TAXPAYERS AND DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE TAX PAYERS. 5. THE TAXPAYERS HAVE ALSO RAISED INDEPENDENT GROUN DS IN THE CROSS OBJECTION WITH REGARD TO THE DIFFERENCE IN THE STOCK OF MEDICI NE AND PAYMENT TO DOCTORS. SINCE THE MAIN ISSUE WITH REGARD TO THE SOURCES OF INVESTMENT FOR CONSTRUCTION HAS BEEN REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER, FOR THE SAKE OF CONSISTENCY, THIS ISSUE IS ALSO REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 6. IN THE RESULT, THE APPEALS OF THE REVENUE AND TH E CROSS OBJECTIONS OF THE TAXPAYERS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH SEPTEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 18 TH SEPTEMBER, 2012 PK/- COPY TO: 1. THE APPELLANTS 2. THE RESPONDENTS 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH