Thankamma OOmmen L/hr of Late sri.K.C.Oommen, Kottayam V. ACIT, Thiruvalla

ITA 154/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4585 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 07-08-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 22-03-2013
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR
• Keywords: Question of law; Deemed dividend; Validity of assessment
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NOS. 154, 155 & 156/COCH/2013 ASSESSMENT YEARS : 2002-03, 2004-05 & 2005-06 SMT. THANKAMMA OOMMEN, (L/HR. OF LATE SHRI K.C. OOMMEN), MANNAR TRUST FUND MANNAR C/O. RONY JOSEPH THOMAS, KANNUKUZHIYIL, MUTTAMBALAM P.O., KOTTAYAM-686 004. [PAN: AABPC 1082C] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, THIRUVALLA. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY NONE (ADJNT. PETITION FILED) REVENUE BY SHRI M. ANIL KUMAR, CIT(DR) DATE OF HEARING 07/08/2013 DATE OF PRONOUNCEMENT 16/08/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDERS PASSED BY THE LD. CIT(A), TRIVANDRUM AND THEY RELATE TO THE ASSESSMEN T YEARS 2002-03, 2004-05 & 2005- 06. SINCE IDENTICAL ISSUES ARE URGED IN THESE APP EALS, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS FILED AN APPLICATION SEEKING ADJOURNMENT. HOWEVER, SINCE THE ASSESSEE HAS FILED DECLARATIONS IN TERMS OF SEC. 158A(1) OF THE ACT IN ALL THE THREE YEARS, WE PROCEED TO DISPOSE OF THE A PPEALS EX-PARTE. 2. IN ALL THESE APPEALS, THE FOLLOWING TWO ISSUES A RE URGED:- A) VALIDITY OF RE-OPENING OF THE ASSESSMENTS. B) VALIDITY OF THE ASSESSMENTS OF DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. I.T.A. NOS. 154-156./COCH/2013 2 3. THE ASSESSEE HAD CONTESTED IDENTICAL ISSUES IN THE APPEAL FILED BY HER FOR THE ASSESSMENT YEAR 2003-04 IN I.T.A. NO. 688/COCH/2010 . THE TRIBUNAL HAS ALREADY DISPOSED OF THE SAID APPEAL ON 20-07-2012 BY DECIDI NG BOTH THE ISSUES AGAINST THE ASSESSEE. 4. DURING THE COURSE OF PREVIOUS HEARING, THE LD . COUNSEL FOR THE ASSESSEE HAD SUBMITTED THAT THE ASSESSEE HAS CHALLENGED ORDER PA SSED BY THE TRIBUNAL IN ITA NO.688/COCH/2010, REFERRED ABOVE, BY FILING THE APP EAL BEFORE THE HONBLE HIGH COURT OF KERALA AND THE SAME HAS BEEN NUMBERED AS I.T.A. 9/2013. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED A DECLARATION IN FORM NO. 8 IN TERMS OF SEC. 158A(1) OF THE ACT R.W.R. 16 OF THE INCOME TAX RULE S FOR ALL THE YEARS UNDER CONSIDERATION, SINCE THE ISSUES CONTESTED IN THESE APPEALS ARE QUESTIONS OF LAW AND THEY HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL IN I TA NO.688/COCH/2010 (REFERRED ABOVE). 5. WE NOTICE THAT SEC. 158A IS A SPECIAL PROVI SION FOR AVOIDING REPETITIVE APPEALS. AS PER SUB. SEC. (1) OF SEC. 158A, THE ASSESSEE MAY FURNISH TO THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, A DECL ARATION IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER, THAT IF THE ASSE SSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, AGREES TO APPLY IN T HE RELEVANT CASE (HERE THE THREE APPEALS UNDER CONSIDERATION) THE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE (HERE THE APPEAL FILED BY THE ASSESSEE FOR AY 2003- 04), HE SHALL NOT RAISE SUCH QUESTION OF LAW IN THE RELEVANT CASE IN APPEAL BEFORE ANY APPELLATE AUTHORITY OR IN APP EAL BEFORE THE HIGH COURT UNDER SECTION 260A OR IN APPEAL BEFO RE THE SUPREME COURT UNDER SECTION 261. AS PER EXPLANATION TO SEC. 158A, THE APPELLATE AUTHORITY MEANS THE DEPUTY COMMISSIONER (APPEALS), THE COMMISSIONER (APPEALS) OR THE APPELLATE TRIBUNAL. 6. ACCORDING TO THE ASSESSEE, BOTH THE ISSUES U RGED IN THESE THREE APPEALS ARE QUESTIONS OF LAW AND THEY HAVE BEEN DECIDED BY THE TRIBUNAL IN THE ASSESSEES OWN I.T.A. NOS. 154-156./COCH/2013 3 CASE IN ANOTHER ASSESSMENT YEAR, VIZ., ASSESSMENT Y EAR 2003-04 IN ITA NO.688/COCH/2010. THE ASSESSEE HAS CHALLENGED THE SAID ORDER PASSED BY THE TRIBUNAL BY FILING APPEAL BEFORE HONBLE HIGH COURT OF KERAL A. HENCE, IN OUR VIEW, THE ASSESSEE IS ENTITLED TO FILE DECLARATIONS IN TERMS OF SEC. 1 58A(1) OF THE ACT. WE NOTICE THAT THE ASSESSEE HAS FILED THE DECLARATION IN ALL THE THREE YEARS UNDER CONSIDERATION IN THE PRESCRIBED FORM, VIZ., FORM NO. 8. 7. AS PER SUB. SEC. (2) OF SEC. 158A, THE APPEL LATE AUTHORITY SHALL CALL FOR A REPORT FROM THE ASSESSING OFFICER ON THE CORRECTNESS OF TH E CLAIM MADE BY THE ASSESSEE. ACCORDINGLY, COPIES OF THE DECLARATION FILED BY THE ASSESSEE FOR ALL THE THREE YEARS WERE FORWARDED TO THE ASSESSING OFFICER BY THE REGISTRY SEEKING HIS OBJECTIONS/COMMENTS. 8. THE ASSISTANT COMMISSIONER OF INCOME-TAX HAV ING JURISDICTION OVER THE ASSESSEE HAS FORWARDED A REPLY DATED 26-07-2013 TO THE COMMI SSIONER OF INCOME-TAX (DR) MAKING THE FOLLOWING OBSERVATIONS: VIDE LETTER DATED 19/07/2013 INSTRUCTION WAS SOUGH T FROM THE CIT, KOTTAYAM REGARDING THE ACCEPTABILITY OF THE DECLARATION U/S. 158A(1) OF THE ACT SUBMITTED SMT. THANKAMMMA OOMMEN (ANNEXURE-1). VIDE LETTER D ATED 24/07/2013 (ANNESURE-2), THE CIT HAS INSTRUCTED ME TO INFORM T HE JUNIOR AR ABOUT THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE. IN THIS REGARD, IT IS SUBMITTED THAT (1) ISSUES IN VOLVED FOR ALL THE ASSESSMENT YEARS (I.E. A.Y. 2003-04 PENDING BEFORE THE HIGH CO URT AND A.YS. 2002-03, 2004- 05 AND 2005-06 PENDING BEFORE THE TRIBUNAL ARE IDEN TICAL AND (2) ISSUES INVOLVED ARE (I) VALIDITY OF RE-OPENING OF ASSESSMENT AND (I I) VALIDITY OF ASSESSMENT OF DEEMED DIVIDEND U/S. 2(22)(E). DURING THE COURSE OF HEARING, THE LD. CIT(DR) FURNI SHED A COPY OF THE ABOVE SAID LETTER AND SUBMITTED THAT THE REVENUE DOES NOT HAVE ANY OB JECTION TO THE PETITIONS FILED BY THE ASSESSEE U/S. 158A OF THE ACT FOR ALL THE YEARS UNDER CONSIDERATION. 9. FROM THE FOREGOING DISCUSSIONS, IT IS SEEN THAT BOTH THE PARTIES HAVE AGREED THAT THE TWO ISSUES URGED IN THESE APPEALS ARE IDENTICAL WITH THE ISSUES THAT HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE, VIDE ITS ORDER DATED 20-07-2012 IN THE ASSESSEES OWN CASE IN I.T.A. NO. 688/COCH/2010 RELATING TO THE ASSESSMENT YEAR I.T.A. NOS. 154-156./COCH/2013 4 2003-04. HENCE WE ADMIT THE CLAIM OF THE ASSESSEE MADE IN TERMS OF SEC. 158A(1) OF THE ACT IN ALL THE THREE YEARS UNDER CONSIDERATION. 10. WE HAVE ALREADY NOTICED THAT BOTH THE ISSUE S URGED IN THESE APPEALS HAVE ALREADY BEEN DECIDED BY THIS TRIBUNAL AGAINST THE A SSESSEE IN ITA NO.688/COCH/2010. BY FOLLOWING THE SAID DECISION, WE DECIDE BOTH THE ISSUES AGAINST THE ASSESSEE IN ALL THE THREE YEARS UNDER CONSIDERATION AS THE FACTS PREVAI LING IN THESE THREE YEARS ARE IDENTICAL WITH THE FACTS AVAILABLE IN THE ASSESSMENT YEAR 200 3-04. 11. WE MAY MAKE IT CLEAR THAT, IN TERMS OF CLAUSE ( B) OF SUB. SEC. (4) OF SEC. 158A OF THE ACT, THE ASSESSEE SHALL NOT BE ENTITLED TO RAIS E BOTH THE QUESTIONS OF LAW NOW DECIDED IN THE PRESENT APPEALS, IN ANY APPEAL FILED BEFORE THE HIGH COURT U/S. 260A OF THE ACT OR THE SUPREME COURT UNDER SECTION 261 OF T HE ACT FOR THE ASSESSMENT YEARS UNDER CONSIDERATION. WE ALSO STATE THAT, IN TERMS OF SUB SEC. (5) OF SEC. 158A, THE QUESTIONS OF LAW REFERRED ABOVE, ON ATTAINING FINAL ITY IN THE ASSESSMENT YEAR 2003-04, SHALL BE APPLIED IN THESE THREE YEARS ALSO AND, IF NECESSARY, THE TRIBUNAL SHALL AMEND THE PRESENT ORDER SUITABLY TO CONFORM TO THE DECISI ON RENDERED BY THE HONBLE HIGH COURT/SUPREME COURT. THE ASSESSEE IS DIRECTED TO MO VE PETITION BEFORE TRIBUNAL SEEKING AMENDMENTS OF THIS ORDER, IF FOUND NECESSARY, UPON THE ISSUES REACHING FINALITY. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE DISMISSED. PRONOUNCED ACCORDINGLY O N 16-08-2013 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 16TH AUGUST 2013 GJ I.T.A. NOS. 154-156./COCH/2013 5 COPY TO: 1. SMT. THANKAMMA OOMMEN, (L/HR. OF LATE SHRI K.C. OOMMEN), MANNAR TRUST FUND MANNAR, C/O. RONY JOSEPH THOMAS, KANNUKUZHIYIL, MUT TAMBALAM P.O., KOTTAYAM-686 004. 2.THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE- 1, THIRUVALLA. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS), TRIVANDR UM. 4.THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN