Sun Tec Business Solutions P.Ltd, Trivandrum V. ACIT, Trivandrum

ITA 159/COCH/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4337 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 24-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 24-02-2010
• Court: TRIBUNAL
• Assessee Lawyers: SHERRY OOMMEN
• Keywords: Depreciation; Set aside
• Section: 143(3); 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.159/COCH/2010 & S.P.NO.14/COCH/2010 ASSESSMENT YEAR:2005-06 SUN TEE BUSINESS SOLUTIONS (P) LTD.,TRIVANDRUM. PA NO.AAICS 8020K VS. THE ASST. COMMISSIONER OF INCOME-TAX,CIRCLE-1(1), TRIVANDRUM. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI SHERRY OOMMEN RESPONDENT BY SHRI PAVAN VED, CIT., DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS APPEAL BY THE ASSESSEE IS AGAINST THE 154 PROCEEDINGS. THE APPEAL IS DIRECTED AGAINST THE O RDER OF THE LD. CIT(APPEALS)-I, TRIVANDRUM, DATED 11-11-2009. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 154 AFTER PASSING OF THE ASSESSMENT ORDER U/S.143(3) AND THE DATE OF THAT ASSESSMENT ORDER IS 24-12-2007. THE 154 ORDE R WAS NECESSITATED, ACCORDING TO THE ASSESSING OFFICER ON THE GROUND THAT WHILE CALCULATING DEDUCTION U/S.10B, A PARTICULAR SUM HAS TO BE EXCLUDED FROM THE EXPORT TURN OVER. THE SECOND GROUND WAS LOSS ON EXCHANGE RATE FLUCTUATION WHICH ITA NO. 159/COCH/2010 2 ALSO ACCORDING TO THE LD. ASSESSING OFFICER HAS TO BE EXCLUDED FROM THE EXPORT TURN OVER. FURTHER, ACCO RDING TO THE LD. ASSESSING OFFICER THE ASSESSEE HAS ALSO CLA IMED DEPRECIATION ON ELECTRICAL FITTING @ 25% INSTEAD OF 15% ALLOWABLE. AS THESE MISTAKES ARE APPARENT FROM R ECORD, THE ASSESSING OFFICER INVOKED 154 JURISDICTION. T HE CONTENTION OF THE ASSESSEE IS THAT IT WAS NOT A DEB ATABLE ISSUE AND THEREFORE TWO VIEWS ARE NOT POSSIBLE AND IT WAS SUFFICIENTLY HEARD AND CONSIDERED IN THE REGULAR AS SESSMENT. THEREFORE, THE ASSESSEE PRAYED FOR DROPPING OF 154 PROCEEDINGS. FURTHER, THE ASSESSING OFFICER PROCE EDED WITH 154 AND MAKE TINKERING IN THE COMPUTATION. 2. ON APPEAL TO THE CIT(APPEALS) AMONG THE GROUNDS ON MERITS, IT WAS ALSO SUBMITTED BY WAY OF LETTER TO T HE LD. CIT(APPEALS)-I, TRIVANDRUM DATED 16-07-2009, WHICH READS AS UNDER: IN THIS REGARD, WE WOULD LIKE TO BRING TO YOUR NOTICE THAT PROCEEDINGS FOR ASSESSMENT YEAR 2005-06 ON SIMILAR ISSUES ARE CURRENTLY IN PROGRESS UNDER T HE JURISDICTION (THE APPEAL PROCEEDINGS ARE IN RESPECT OF THE ORDER OF THE DY. COMMISSIONER OF INCOME-TAX UND ER SECTION 143(3) OF THE INCOME-TAX ACT,1961 (THE ACT ) OF CIT(APPEALS)-II, ERNAKULUM. ITA NO. 159/COCH/2010 3 AS BOTH THE APPEALS FOR ASSESSMENT YEAR 2005-06 ARE ON SIMILAR ISSUES, WE REQUEST YOUR GOODSELF TO ARRANGE FOR PROCEEDINGS TO BE CARRIED OUT UNDER THE SAME AUTHORITY. IN CASE YOU REQUIRE ANY FURTHER INFORMATION OR DOCUMENTS, WE SHALL BE GLAD TO PROVIDE THE SAME. 3. THE PRAYER OF THE ASSESSEE BEFORE THE LD. CIT(AP PEALS) WOULD BE BY THIS APPEAL AS WELL AS BY WAY OF THE LE TTER DATED 16-7-2009 THAT THE REGULAR APPEAL AGAINST 143(3) ASSESSMENT ORDER WAS PENDING BEFORE THE LD. CIT(APP EALS)- II, ERNAKULAM AND BOTH THE APPEALS ARE FOR THE ASSE SSMENT YEAR 2005-06 ARE ON SIMILAR ISSUES. THE ASSESSEE REQUESTED THE AUTHORITIES TO ARRANGE THE PROCEEDINGS TO BE CA RRIED OUT UNDER THE SAME AUTHORITY. BY THIS LETTER, THE ASS ESSEES PRAYER WOULD BE THAT BOTH THE REGULAR APPEAL AGAINS T THE IMPUGNED ORDER OF ASSESSMENT MADE U/S.143(3) AS WEL L AS 154 ORDER PASSED SUBSEQUENTLY AND THE APPEAL ARISIN G OUT OF THAT 154 ORDER, BOTH HAS TO BE TRIED BY ONE AND THE SAME PERSON FOR PROPER ADJUDICATION AND TO AVOID MULTIPL ICITY OF PROCEEDINGS. HOWEVER, THIS WAS NOT ADHERED TO BY T HE AUTHORITIES BELOW. IN THE CIRCUMSTANCES, THIS 154 APPEAL WAS GOT DISPOSED OFF BY THE LD. CIT(APPEALS) SEPARA TELY IN ISOLATION WITH THE 143(3) ASSESSMENT ORDER WHICH I S UNDER APPEAL, STILL PENDING BEFORE THE FIRST APPELLATE AU THORITY. ITA NO. 159/COCH/2010 4 THE 154 APPELLATE ORDER WAS PASSED BY THE LD. CIT(A PPEALS), TRIVANDRUM, DATED 11-11-2009. IT IS BORNE OUT FR OM THE APPELLATE ORDER CAUSE TITLE GIVEN IN THE IMPUGNED A PPELLATE ORDER. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SAL OF THE MATERIALS AVAILABLE ON RECORD, WE ARE OF THE VI EW THAT IN THE INTEREST OF JUSTICE THIS APPEAL HAS TO BE REMIT TED BACK TO THE FILE OF THE LD. CIT(APPEALS) AS SUCH SECTION 15 4 IS MAINTAINABLE. ACCORDINGLY, WE SET ASIDE THE IMPUGNE D APPELLATE ORDER AND RESTORE THE APPEAL TO THE FILE OF THE LD. CIT(APPEALS) WITH A DIRECTION THAT IT SHOULD BE TRI ED ALONG WITH 143(3) APPEAL AND THE NECESSARY ARRANGEMENT SH OULD BE MADE UNDER THE KNOWN PROCESSES OF LAW FOR TRYING BOTH THE APPEALS BY THE SAME AUTHORITY. IT IS UNDERST OOD BY WAY OF THIS LETTER THAT THE REGULAR APPEAL AGAINST 143(3) ASSESSMENT ORDER FOR THE VERY SAME ASSESSMENT YEAR 2005- 06 IS NOW PENDING BEFORE THE LD. CIT(APPEALS)-II, E RNAKULAM. IF THAT BEING THE CASE, THE ASSESSEE HAS TO MAKE A REQUISITE APPLICATION FOR THE COMMON DISPOSAL OF BOTH THE APP EALS AS IT IS IN RESPECT OF THE SAME ASSESSEE FOR THE SAME ASS ESSMENT YEAR AND ISSUES ARE ALSO INTER-DEPENDENT. IT IS FOR THE ASSESSEE TO BRING IT TO THE NOTICE OF THE AUTHORITI ES REGARDING ITA NO. 159/COCH/2010 5 THE TWO SEPARATE APPEALS WITH TWO DIFFERENT AUTHORI TIES AND THE REQUISITE APPLICATION HAS TO BE MADE BY THE ASS ESSEE FOR CLUBBING OF BOTH THE APPEALS AND TO BE DISPOSED OFF IN ACCORDANCE WITH THE LAW. IT IS NEEDLESS TO MENTION THAT THE CIT(APPEALS) SHOULD AFFORD SUFFICIENT OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. ASSESSEE SHOULD ALSO CO-OPE RATE WITH THE DEPARTMENT TO DISPOSE OF THE APPEAL AT THE EARL IEST, AS HEAVY STAKE IS INVOLVED. THE ASSESSEE IS AT LIB ERTY TO PLACE ALL THE ARGUMENTS INCLUDING THOSE ARGUMENTS W HICH WERE ATTEMPTED TO BE RELIED ON BEFORE US. 5. SINCE THE APPEAL ITSELF IS DISPOSED OF THROUGH T HIS ORDER, THE STAY PETITION FILED BY THE ASSESSEE BECO MES INFRUCTUOUS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETIT ION FILED BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 30 TH JUNE,2010. PM. ITA NO. 159/COCH/2010 6 COPY FORWARDED TO: 1. SUN TEE BUSINESS SOLUTIONS (P) LTD., 321 NILA, TECH NOPARK, KARIAVATTOM, TRIVANDRUM-695581. 2. THE ACIT,CIRCLE-1(1), TRIVANDRUM. 3. CIT(A)-I, TRIVANDRUM. 4. CIT, TRIVANDRUM. 5. D.R.