M/sNew Cochin Real Estate Developers, Trichur V. The DCIT, Ernakulam

ITA 155/COCH/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90789 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 08-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2015
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR
• Assessee Lawyers: K KITTU
• Section: 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM I.T.A. NO.155 /COCH/2015 ASSESSMENT YEAR : 2008-09 M/S. NEW COCHIN REAL ESTATE DEVELOPERS, CITADEL HOUSE C NAGAR, NADATHARA P.O., THRISSUR-680 751. [PAN:AAGFN 8053J] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI K.KITTU, ADV. REVENUE BY SHRI M. ANIL KUMAR, CIT(DR) DATE OF HEARING 08/07/2015 DATE OF PRONOUNCEMENT 10TH/07/2015 O R D E R PER B.P. JAIN, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER OF THE LD. CIT(A)- IV, KOCHI DATED 23 RD DECEMBER, 2014 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS FAILED TO NOTE THE FACT THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER FOR THE A.Y. 2008-09, U /S. 144 FOR THE SPECIFIC REASON MENTIONED IN PARA 7(III) AT PAGE 9 OF THE AS SESSMENT ORDER AS UNDER: I.T.A. NO.155/COCH/2015 2 ON A CAREFUL CONSIDERATION OF THE ABOVE, IT IS CLE AR THAT THE ASSESSEE HAS NO DEFENSE REGARDING NON-FILING OF RETURN OF INCOME OR NON-PRODUCTION OF BOOKS OF ACCOUNT. IN THE CIRCUMSTANCES, I AM LEFT WITH NO ALTERNATIVE BUT TO ASSESS THE INCOME U/S. 144 TO THE BEST OF MY JUD GMENT AS UNDER. 2. THE FIRST APPELLATE AUTHORITY HAS ERRED IN COMI NG TO THE CONCLUSION BASED ON THE ANSWER GIVEN IN COLUMN-11, OF THE FORM NO. 35 (MEMORANDUM OF APPEAL) THAT THE APPELLANT HAS NOT P AID THE TAX ON ADMITTED INCOME. 3. IT CAN BE INTERPRETED AS (A) NO RETURN HAS BEE N FILED AND (B) AGAIN AS NO INCOME HAS BEEN RETURNED. SINCE THE ENTIRE INCO ME ASSESSED IS DISPUTED IN APPEAL 4. THE LEARNED CIT(A) HAS MISCONSTRUED THE COMMUN ICATION RECEIVED FROM THE ASSESSING OFFICER IN ITNS 51 DATED 10.12.2014 A S UNDER: THE ASSESSEE HAD NOT FILED ANY REGULAR RETURN OF INCOME, NOR HAS IT FILED ANY RETURN IN RESPONSE TO NOTICE U/S. 148 ISSUED ON 01.04.2009. THE ASSESSEE HAS NOT PAID ANY TAX AT ALL, WHETHER ADVAN CE TAX OR ANY OTHER KIND OF TAX. 5. THE LD. CIT(A) HAS GONE WRONG IN ARRIVING AT T HE CONCLUSION BASED ON THE ABOVE COMMUNICATION OF THE ASSESSING OFFICER TH AT TAX HAS NOT BEEN I.T.A. NO.155/COCH/2015 3 PAID ON THE RETURNED INCOME; WHILE THE ASSESSING OF FICER HAS ASSERTIVELY PUT THAT NO RETURN OF INCOME HAS BEEN FILED EITHER U/S. 139 OR U/S. 148. 6. THE ORDER OF THE FIRST APPELLATE AUTHORITY IS AB INITIO VOID. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT IN THE PRESENT CASE WAS PASSED U/S. 144 OF THE ACT DATED 31 ST DECEMBER 2010 BY DCIT, CENTRAL CIRCLE-1, ERNAKULAM. AS PER ASSESSING OFFICER, THE ASSESSEE FILED THE RETURN OF INCOME ON 28/08/2010 IN RESPONSE TO NOTICE U/S. 148 DATED 01/04/2009, AT A TOTAL INCOME OF RS.1,41,86,602/-. HOWEVER, THE TAX ON THE RETURNED INCOME WERE NOT PAID BY THE ASSESSEE TILL THE TIME OF FILING TH E APPEAL, AND TILL THE ORDER PASSED BY LD. CIT(A). THE INCOME HAS BEEN ASSESSED AT RS.16,74,03,680/-. THE LD. CIT(A), BY FOLLOWING THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT DID NOT ADMIT THE APPEAL OF THE ASSESSEE, SINCE THE ASSESSE E DID NOT PAY THE TAX ON THE RETURNED INCOME. THE RELEVANT ORDER OF THE LD. CIT (A) CONTAINED IN PARA 5 TO 7 IS REPRODUCED HEREINBELOW : 5. MEANWHILE, VIDE NOTICE DATED 19/11/2014, THE CA SE WAS FIXED FOR HEARING ON 02/12/2014, IN RESPONSE TO WHICH SHRI K. KITTU, ADVOCATE APPEARED AND FILED HIS VAKALATHNAMA ON 08/12/2014. DURING THE C OURSE OF DISCUSSION, IT WAS FOUND THAT TAXES DUE ON THE INCOME RETURNED HAV E NOT BEEN PAID. THIS FACT IS ALSO CLEAR FROM THE FORM NO. 35, WHERE PAYM ENT OF DUE TAX HAS BEEN INDICATED AS NA SINCE THE ENTIRE INCOME ASSESSED I S DISPUTED IN APPEAL. IT HAS BEEN FURTHER CONFIRMED BY THE ASSESSING OFFICER IN ITNS 51 DATED 10/ 12/2014 THAT: I.T.A. NO.155/COCH/2015 4 THE ASSESSEE HAD NOT FILED ANY REGULAR RETURN OF INCOME, NOR HAS IT FILED ANY RETURN IN RESPONSE TO NOTICE U/S. 148 ISSUED O N 01.04.2009. THE ASSESSEE HAS NOT PAID ANY TAX AT ALL, WHETHER ADVA NCE TAX OR ANY OTHER KIND OF TAXES. 6. THE ASSESSEE HAS NOT PAID THE TAXES ON THE RE TURNED INCOME. IT HAS BEEN VERIFIED FROM THE ASSESSING OFFICER AND PLACED ON RECORD. SHRI K.KITTU, ADVOCATE & AR APPEARED, BUT NO PROOF REGARDING PAYM ENT OF SELF ASSESSMENT TAX WAS FURNISHED. 7. AS PER THE PROVISIONS OF SECTION 249(4)(A) W HICH READS AS, NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNL ESS AT THE TIME OF FILING OF THE APPEAL: (A) WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM. IT IS A CASE, WHERE THE TAX DUE ON THE RETURNED INC OME HAS NOT BEEN PAID BY THE APPELLANT, AND THE SAME STANDS CONFIRMED BY THE ASSESSING OFFICER AS WELL AS THE ASSESSEE, THE APPEAL FILED VIDE I.T. ACT-E-21 2/CIT(A) IV/10-11 DATED 27/01/2011, IS NOT ADMISSIBLE. AS A MATTER OF FACT , THE WORD USED IN SECTION 249(4) IS SHALL, MEANING THEREBY THAT THE PAYMENT OF TAX DUE ON INCOME RETURNED BY THE ASSESSEE IS MANDATORY. AT THE SAME TIME, IT BECOMES OBLIGATORY UPON THE CIT(A), AS TO NOT TO ADMIT AN A PPEAL WHERE THE TAX DUE ON THE RETURNED INCOME HAS NOT BEEN PAID BY THE ASS ESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE PROVISIONS CONTAINED IN SECTION 249(4)(A) OF THE ACT THAT THE PROVISIONS CONTAINED IN THE SAID SECTION ARE APPLICABLE ONLY WHEN THE RETURN HAS BEE N FILED BY THE ASSESSEE AND THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RET URNED. BUT IN THE PRESENT CASE, THE ASSESSEE HAS NOT FILED ANY RETURN OF INCO ME WHETHER UNDER SECTIONS 139 OR 148 OF THE ACT. THE ASSESSEE HAS DISPUTED T HE TOTAL ADDITIONS MADE BY THE ASSESSING OFFICER AND THE TAX SO LEVIED BY THE ASSESSING OFFICER AND NO TAX HAS BEEN PAID BY THE ASSESSEE. THEREFORE, THE PROV ISIONS OF SECTION 249(4)(A) OF I.T.A. NO.155/COCH/2015 5 THE ACT CANNOT BE APPLIED BY THE LD. CIT(A). ACCOR DINGLY, HE PRAYED TO REVERSE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER OF THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. UNDISPUTEDLY, THE FACTS OF THE CASE ARE THAT THE AS SESSEE HAS NOT FILED ANY REGULAR RETURN OF INCOME UNDER SECTIONS 139(1)/139( 4) OF THE ACT OR U/S. 148 OF THE ACT. THIS FACT HAS BEEN ADMITTED BY THE ASSESS ING OFFICER AS REPRODUCED IN THE ORDER OF THE LD. CIT(A) IN PARA 5 HEREINABOVE. IT IS ALSO UNDISPUTED THAT THE ASSESSMENT HAS BEEN FRAMED U/S. 144 OF THE ACT. TH ERE IS NO REBUTTAL BY THE LD. DR TO THE FACTS OF THE PRESENT CASE AND THE ARGUMEN TS MADE BY THE LD. AR THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME UND ER SECTIONS 139/148 OF THE ACT. THE ASSESSEE HAS DISPUTED THE ADDITIONS MADE BY THE ASSESSING OFFICER IN TOTO AND THE TAX SO LEVIED BY THE ASSESSING OFFICER . IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, HAVING NOT ADMIT TED TO PAY ANY TAX BY THE ASSESSEE AND HAVING NOT FILED RETURN OF INCOME UNDE R ANY PROVISIONS OF THE ACT, SECTION 249(4) (A) OF THE ACT CANNOT COME INTO PLAY . ACCORDINGLY, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT ADMITTING THE APPEAL FILED BY THE ASSESSEE. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS REVERSED AND THE LD. CIT (A) IS DIRECTED TO DECIDE THE APPEAL ON MERIT BY AFFORDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. I.T.A. NO.155/COCH/2015 6 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 10-07-2015 SD/- SD/- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 10TH JULY, 2015 GJ COPY TO: 1. M/S. NEW COCHIN REAL ESTATE DEVELOPERS, CITADEL H OUSE C NAGAR, NADATHARA P.O., THRISSUR-680 751. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE-1, ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN