Kanam Latex Industries P.Ltd, Kottayam V. ACIT, Kottayam

ITA 260/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69118 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR
• Keywords: Principle of natural justice
• Section: 143(3); 12A; 10B; 147; 263

Judgement Text

1 ITA NO. 260/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 260/COCH/2013 (ASSESSMENT YEAR 2008-09) KANAM LATEX INDUSTRIES PVT LTD VS ACIT, CIR.1 OOPPOOTTIL BUILDINGS KOTTAYAM K.K. ROAD, KOTTAYAM PAN : AABCK0056E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JOSEPH MARKAS SHRI ABRAHAM JOSEPH MARKAS RESPONDENT BY : SHRI M ANIL KUMAR, C.I.T. DATE OF HEARING : 07-08-2013 DATE OF PRONOUNCEMENT : 16-08-2013 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE ADMINISTRATIVE COMMISSIONER DATED 26-03-2013 U/S 26 3 OF THE ACT FOR THE ASSESSMENT YEAR 2008-09. 2. WE HEARD SHRI JOSPEH MARKAS ALONGWITH SHRI ABRAH AM JOSEPH MARKAS, THE LD.COUNSELS FOR THE ASSESSEE AND SHRI M ANIL KUMAR, THE LD.DR. 2 ITA NO. 260/COCH/2013 3. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U /S 143(3) OF THE ACT BY AN ORDER DATED 30-12-2010. HOWEVER, THE ADM INISTRATIVE COMMISSIONER IN EXERCISE OF HIS REVISIONAL JURISDIC TION U/S 263 OF THE INCOME-TAX ACT FOUND THAT THE ASSESSING OFFICER OMI TTED TO DISALLOW EXPENSES CLAIMED U/S 36(1)(II) TOWARDS COMMISSION S AID TO BE PAID TO MANAGING DIRECTOR, WHOLE TIME DIRECTOR AND VICE PRE SIDENT (MARKETING). THE ASSESSING OFFICER APPARENTLY DISCUSSED THE DEDU CTION CLAIMED BY THE ASSESSEE U/S 10B OF THE ACT. HOWEVER, THERE IS NO REFERENCE IN THE ASSESSMENT ORDER ABOUT THE COMMISSION SAID TO BE CL AIMED BY THE ASSESSEE. THEREFORE, IT IS OBVIOUS THAT THE PAYMEN T OF COMMISSION TO THE MANAGING DIRECTOR, WHOLE TIME DIRECTOR AND VICE PRE SIDENT (MARKETING) WAS NOT SUBJECT MATTER OF ASSESSMENT IN THE ASSESSMENT ORDER. IN OTHER WORDS, THE ASSESSING OFFICER OMITTED TO CONSIDER THE CLAIM MADE BY THE ASSESSEE TOWARDS PAYMENT OF COMMISSION TO MANAGING DIRECTOR, WHOLE TIME DIRECTOR AND VICE PRESIDENT (MARKETING). 4. THE ASSESSING OFFICER BEING A QUASI JUDICIAL AUT HORITY IS EXPECTED TO CONSIDER ALL THE CLAIMS MADE BY THE ASSESSEE AND EX PRESS HIS OPINION IN THE ASSESSMENT ORDER. IN OTHER WORDS, THE ASSESSME NT ORDER SHALL BE A SPEAKING ORDER. THE VERY FACT THAT THE ASSESSING O FFICER OMITTED TO DISCUSS THE CLAIM MADE BY THE ASSESSEE TOWARDS COMMISSION T O MANAGING DIRECTOR, WHOLE TIME DIRECTOR AND VICE PRESIDENT (M ARKETING) CLEARLY SHOWS 3 ITA NO. 260/COCH/2013 THAT THE ASSESSING OFFICER FAILED TO APPLY HIS MIND TO THE CLAIM MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER WITHOUT A PPLICATION OF MIND ALLOWED THE CLAIM. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE NON APPLICATION OF MIND BY THE ASSESSING OFFICER TO THE CLAIM OF THE ASSESSEE FOR PAYMENT OF COMMISSION TO MANAGING DIRECTOR, WHOLE T IME DIRECTOR AND VICE PRESIDENT (MARKETING) IS AN ERROR WHICH IS PREJUDIC IAL TO THE INTEREST OF THE REVENUE. 5. IN FACT THE PUNJAB & HARYANA HIGH COURT HAD AN OCCA SION TO EXAMINE THIS ISSUE IN COMMISSIONER OF INCOME-TAX VS SUNIL KUMAR GOEL (2005) 274 ITR 53 (P&H) AND AFTER CONSIDERING THE JUDGMENT OF THE APEX COURT IN MUKHERJEE (S.N.) VS UOI (1990) AI R 1990 SC 1984 HAS OBSERVED AS FOLLOWS: IN S.N. MUKHERJEE V. UNION OF INDIA, AIR 1990 SC 1984, A CONSTITUTION BENCH OF THE SUPREME COURT DISCUSSED THE DEVELOPMENT OF LAW ON THIS SUBJECT IN INDIA, AUSTRALIA, CANADA, ENGLAND AND THE UNITED STATES OF AMERICA AND AFTER MAKING REFERENCE TO A LARGE NUMBE R OF JUDICIAL PRECEDENTS, THEIR LORDSHIPS CULLED OUT THE FOLLOWING PROPOSITIONS (PAGE 1995): THE DECISIONS OF THIS COURT REFERRED TO ABOVE INDICATE THAT WITH REGARD TO THE REQUIREMENT TO REC ORD REASONS THE APPROACH OF THIS COURT IS MORE IN LINE WITH THAT OF THE AMERICAN COURTS. AN IMPORTANT CONSIDERATION WHICH HAS WEIGHED WITH THE COURT FOR HOLDING THAT A N 4 ITA NO. 260/COCH/2013 ADMINISTRATIVE AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTIONS MUST RECORD THE REASONS FOR ITS DECISION, IS THAT S UCH A DECISION IS SUBJECT TO THE APPELLATE JURISDICTION O F THIS COURT UNDER ARTICLE 136 OF THE CONSTITUTION AS WELL AS TH E SUPERVISORY JURISDICTION OF THE HIGH COURTS UNDER A RTICLE 227 OF THE CONSTITUTION AND THAT THE REASONS, IF RE CORDED, WOULD ENABLE THIS COURT OR THE HIGH COURTS TO EFFEC TIVELY EXERCISE THE APPELLATE OR SUPERVISORY POWER. BUT T HIS IS NOT THE SOLE CONSIDERATION. THE OTHER CONSIDERATIO NS WHICH HAVE ALSO WEIGHED WITH THE COURT IN TAKING TH IS VIEW ARE THAT THE REQUIREMENT OF RECORDING REASONS WOULD (I) GUARANTEE CONSIDERATION BY THE AUTHORITY; (II) INTR ODUCE CLARITY IN THE DECISIONS; AND (III) MINIMIZE CHANCE S OF ARBITRARINESS IN DECISION MAKING. IN THIS REGARD A DISTINCTION HAS BEEN DRAWN BETWEEN ORDINARY COURTS OF LAW AND TRIBUNALS AND AUTHORITIES EXERCISING JUDICIAL F UNCTIONS ON THE GROUND THAT A JUDGE IS TRAINED TO LOOK AT TH INGS OBJECTIVELY UNINFLUENCED BY CONSIDERATIONS OF POLIC Y OR EXPEDIENCY WHEREAS AN EXECUTIVE OFFICER GENERALLY L OOKS AT THINGS FROM THE STAND POINT OF POLICY AND EXPEDI ENCY. REASONS, WHEN RECORDED BY AN ADMINISTRATIVE AUTHORITY IN AN ORDER PASSED BY IT WHILE EXERCISING QUASI- JUDICIAL FUNCTIONS, WOULD NO DOUBT FACILITATE THE E XERCISE OF ITS JURISDICTION BY THE APPELLATE OR SUPERVISORY AU THORITY. BUT THE OTHER CONSIDERATIONS, REFERRED TO ABOVE, WH ICH HAVE ALSO WEIGHED WITH THIS COURT IN HOLDING THAT A N ADMINISTRATIVE AUTHORITY MUST RECORD REASONS FOR IT S DECISION, ARE OF NO LESS SIGNIFICANCE. THESE CONSIDERATIONS SHOW THAT THE RECORDED OF REASONS BY AN ADMINISTRATIVE AUTHORITY SERVICES A SALUTARY PURPOS E, NAMELY, IT EXCLUDES CHANCES OF ARBITRARINESS AND EN SURES A DEGREE OF FAIRNESS IN THE PROCESS OF DECISION-MAK ING. THE SAID PURPOSE WOULD APPLY EQUALLY TO ALL DECISIO NS AND ITS APPLICATION CANNOT BE CONFINED TO DECISIONS WHI CH ARE SUBJECT TO APPEAL, REVISION OR JUDICIAL REVIEW. IN OUR OPINION, THEREFORE, THE REQUIREMENT THAT REASONS BE RECORDED SHOULD GOVERN THE DECISIONS OF AN ADMINIST RATIVE AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTIONS IRRES PECTIVE OF 5 ITA NO. 260/COCH/2013 THE FACT WHETHER THE DECISION IS SUBJECT TO APPEAL, REVISION OR JUDICIAL REVIEW. IT MAY, HOWEVER, BE ADDED THAT IT IS NOT REQUIRED THAT THE REASONS SHOULD BE AS ELABORATE AS IN THE DECISION OF A COURT OF LAW. THE EXTENT AND NATURE OF THE REASONS WOULD DEPEND ON PARTICULAR FACTS AND CIRCUMSTANCES. WHAT IS NECESSARY IS THAT THE REASO NS ARE CLEAR AND EXPLICIT SO AS TO INDICATE THAT THE AUTHO RITY HAS GIVEN DUE CONSIDERATION TO THE POINTS IN CONTROVERS Y. THE NEED FOR RECORDING OF REASONS IS GREATER IN A CASE WHERE THE ORDER IS PASSED AT THE ORIGINAL STAGE. THE APP ELLATE OR REVISIONAL AUTHORITY, IF IT AFFIRMS SUCH AN ORDER, NEED NOT GIVE SEPARATE REASONS IF THE APPELLATE OR REVISIONA L AUTHORITY AGREES WITH THE REASONS CONTAINED IN THE ORDER UNDER CHALLENGE. IN TESTEELS LTD V. N.M. DESAI (1970) 37 FJR 7; AIR 1970 GUJ 1, A FULL BENCH OF THE GUJARAT HIGH COURT HAS MADE AN EXTREMELY LUCID ENUNCIATION OF LAW ON THE S UBJECT AND WE CAN DO NO BETTER THAN TO EXTRACT SOME OF THE OBSERVATIONS MADE IN THE DECISION. THE SAME ARE (HEADNOTE OF AIR 1970 (GUJ)): THE NECESSITY OF GIVING REASONS FLOWS AS A NECESSARY COROLLARY FROM THE RULE OF LAW WHICH CONS TITUTES ONE OF THE BASIC PRINCIPLES OF THE INDIAN CONSTITUT IONAL SET- UP. THE ADMINISTRATIVE AUTHORITIES HAVING A DUTY T O ACT JUDICIALLY CANNOT THEREFORE DECIDE ON CONSIDERATION S OF POLICY OR EXPEDIENCY. THEY MUST DECIDE THE MATTER SOLELY ON THE FACTS OF THE PARTICULAR CASE, SOLELY ON THE MATERIAL BEFORE THEM AND APART FROM ANY EXTRANEOUS CONSIDERATIONS BY APPLYING PRE-EXISTING LEGAL NORMS TO FACTUAL SITUATIONS. NOW THE NECESSITY OF GIVING RE ASONS IS AN IMPORTANT SAFEGUARD TO ENSURE OBSERVANCE OF THE DUTY TO ACT JUDICIALLY. IT INTRODUCES CLARITY, CHECKS T HE INTRODUCTION OF EXTRANEOUS OR IRRELEVANT CONSIDERAT IONS AND EXCLUDES OR, AT ANY RATE, MINIMIZES ARBITRARINE SS IN THE DECISION-MAKING PROCESS. 6 ITA NO. 260/COCH/2013 ANOTHER REASON WHICH COMPELS MAKING OF SUCH AN ORDER IS BASED ON THE POWER OF JUDICIAL REVIEW WHIC H IS POSSESSED BY THE HIGH COURT UNDER ARTICLE 226 AND T HE SUPREME COURT UNDER ARTICLE 32 OF THE CONSTITUTION. THESE COURTS HAVE THE POWER UNDER THE SAID PROVISIONS TO QUASH BY CERTIORARI A QUASI-JUDICIAL ORDER MADE BY AN ADMINISTRATIVE OFFICER AND THIS POWER OF REVIEW CAN BE EFFECTIVELY EXERCISED ONLY IF THE ORDER IS A SPEAKI NG ORDER. IN THE ABSENCE OF ANY REASONS IN SUPPORT OF THE ORD ER, THE SAID COURTS CANNOT EXAMINE THE CORRECTNESS OF THE O RDER UNDER REVIEW. THE HIGH COURT AND THE SUPREME COURT WOULD BE POWERLESS TO INTERFERE SO AS TO KEEP THE ADMINISTRATIVE OFFICER WITHIN THE LIMITS OF THE LAW . THE RESULT WOULD BE THAT THE POWER OF JUDICIAL REVIEW W OULD BE STULTIFIED AND NO REDRESS BEING AVAILABLE TO THE CI TIZEN, THERE WOULD BE INSIDIOUS ENCOURAGEMENT TO ARBITRARI NESS AND CAPRICE. IF THIS REQUIREMENT IS INSISTED UPON, THEN, THEY WILL BE SUBJECT TO JUDICIAL SCRUTINY AND CORRE CTION. IF THE ORDER PASSED BY THE TRIBUNAL IS SCRUTINIZED IN THE LIGHT OF THE AFOREMENTIONED PROPOSITION OF LAW, WE DO NOT FIND ANY DIFFICULTY IN SETTING ASIDE THE SAME O N THE GROUND OF VIOLATION OF THE RULES OF NATURAL JUSTICE . THE FLOWERY LANGUAGE USED BY THE TRIBUNAL TO JUSTIFY IT S ACCEPTANCE OF THE RESPONDENTS PLEA THAT HE DID NOT KNOW THE LAW DOES NOT WARRANT OUR AFFIRMATION. IN OUR O PINION, THE TRIBUNAL WAS DUTY BOUND TO RECORD TANGIBLE AND COGENT REASONS FOR UPSETTING WELL REASONED ORDERS P ASSED BY THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOME-TAX (APPEALS). IT SHOULD HAVE DIRECTED ITS ATTENTION TO THE LANGUAGE OF SECTION 271D AND 271E OF THE ACT IN CONJUNCTION WITH OTHER PROVISIONS OF THE SAM E FAMILY AND THEN DECIDED BY A REASONED ORDER WHETHER THE RESPONDENT HAD BEEN ABLE TO MAKE OUT A CASE FOR DEL ETING THE PENALTY. THE ORDER PASSED BY THE TRIBUNAL SHOU LD HAVE CLEARLY REFLECTED THE APPLICATION OF MIND BY T HE LEARNED MEMBERS. 7 ITA NO. 260/COCH/2013 6. THE APEX COURT ALSO HAD AN OCCASION TO CONSIDER THIS ISSUE IN TOYOTA MOTOR CORPORATION VS COMMISSIONER OF INCOME- TAX (2008) 306 ITR 52 (SC). THE APEX COURT HAS OBSERVED AS FOLLOW S AT PAGE 53 OF THE ITR: WE ARE NOT INCLINED TO INTERFERE WITH THE IMPUGNE D ORDER OF THE HIGH COURT. THE HIGH COURT HAS HELD T HAT THE ASSESSING OFFICER HAD DISPOSED OF THE PROCEEDINGS STATING THE PENALTY PROCEEDINGS INITIATED IN THIS C ASE UNDER SECTION 271C READ WITH SECTION 274 OF THE INCOME-TA X ACT, 1961 ARE HEREBY DROPPED. ACCORDINGLY TO THE HIGH C OURT, THERE WAS NO BASIS INDICATED FOR DROPPING THE PROCEEDINGS. THE TRIBUNAL REFERRED TO CERTAIN ASPE CTS AND HELD THAT THE INITIATION OF PROCEEDINGS UNDER S ECTION 263 OF THE INCOME-TAX ACT, 1961 (IN SHORT, THE I.T . ACT) WAS IMPERMISSIBLE WHEN CONSIDERED IN THE BACKGROUND OF THE MATERIALS PURPORTEDLY PLACED BY THE ASSESSEE BE FORE THE ASSESSING OFFICER. WHAT THE HIGH COURT HAS DON E IS TO REQUIRE THE ASSESSING OFFICER TO PASS A REASONED ORDER. THE HIGH COURT WAS OF THE VIEW THAT THE TRIBUNAL CO ULD NOT HAVE SUBSTITUTED ITS OWN REASONINGS WHICH WERE REQUIRED TO BE RECORDED BY THE ASSESSING OFFICER. ACCORDING TO THE ASSESSEE, ALL RELEVANT ASPECTS WER E PLACED FOR CONSIDERATION AND IF THE OFFICER DID NOT RECORD REASONS, THE ASSESSEE CANNOT BE FAULTED. WE DO NOT THINK IT NECESSARY TO INTERFERE AT THIS STAGE. IT GOES WITHOUT SAYING THAT WHEN THE MATTER BE TAKEN UP BY THE ASSESSING OFFICER ON REMAND, IT SHA LL BE HIS DUTY TO TAKE INTO ACCOUNT ALL THE RELEVANT ASPE CTS INCLUDING THE MATERIALS, IF ANY, ALREADY PLACED BY THE ASSESSEE, AND PASS A REASONED ORDER. 8 ITA NO. 260/COCH/2013 7. WE ALSO FIND THAT THE ALLAHABAD HIGH COURT IN A RECENT UNREPORTED JUDGMENT EXPRESSED ITS SHOCK AND ANGUISH THE WAY IN WHICH THE ASSESSMENT ORDERS AND THE REVISIONAL ORDE RS ARE BEING PASSED. IN FACT, THE ASSESSEE, M/S FATEH CHAND CHA RITABLE TRUST IN WRIT TAX NO.1629 OF 2010 (JUDGMENT DATED 27-05-2013 ) BEFORE THE ALLAHABAD HIGH COURT RECEIVED DONATION OF RS.5.23 C RORES. THE ASSESSING OFFICER ACCEPTED THE SAME WITHOUT ANY ENQ UIRY AND REASONING IN THE ASSESSMENT ORDER. THE COMMISSIONE R OF INCOME- TAX INITIATED PROCEEDINGS TO CANCEL THE REGISTRATIO N U/S 12A OF THE ACT. HOWEVER, IT WAS DROPPED WITHOUT RECORDING ANY REASO N. SUBSEQUENTLY, THE CASE WAS REOPENED AND NOTICE WAS ISSUED U/S 147 OF THE ACT. THE ASSESSEE CHALLENGED THE NOTICE ISS UED FOR REOPENING THE ASSESSMENT BY WAY OF WRIT PETITION. WHILE CONS IDERING THE WIT PETITION, THE ALLAHABAD HIGH COURT EXPRESSED ITS SH OCK AND ANGUISH ON THE WAY IN WHICH THE ORDERS ARE BEING PASSED BY THE INCOME-TAX AUTHORITIES. IN FACT, THE ALLAHABAD HIGH COURT HAS OBSERVED AS FOLLOWS: THE INCOME TAX AUTHORITIES ARE REQUIRED TO ADMINISTER THE ACT. THE RIGHT TO ADMINISTER, CANNO T OBVIOUSLY INCLUDE THE RIGHT TO MAL-ADMINISTER. THU S, WE 9 ITA NO. 260/COCH/2013 FIND NO WORDS TO EXPRESS ANGUISH AS WHAT KIND OF GOVERNANCE IT HAD BEEN. THERE IS ANOTHER REASON FOR IGNORING THE AFORESAID ORDER, DROPPING THE CANCELLATION PROCEEDING OF REGISTRATION. THE SAID ORDER DOES NOT CONTAIN ANY REASON. REASONS INTRODUCE CLARITY IN AN ORDER. REASON IS T HE HEART BEAT OF EVERY CONCLUSION AND WITHOUT THE SAME IT BECOMES LIFELESS. (SEE RAJ KISHORE JHA VERSUS STAT E OF BIHAR AND OTHERS, AIR 2003 SC 4664). EVEN IN RESPECT OF ADMINISTRATIVE ORDERS LORD DENNING M.R. IN BREEN VS. AMALGAMATED ENGINEERING UNION, (1971) ALL. E.R. 1148) OBSERVED: THE GIVING OF REASONS IS ONE OF THE FUNDAMENTALS OF GOOD ADMINISTRATION. FAILURE TO GIVE REASONS AMOUNTS TO DENIAL OF JUSTI CE. REASONS ARE LIVE LINKS BETWEEN THE MIND OF THE DECI SION TAKER TO THE CONTROVERSY IN QUESTION AND THE DECISI ON OR CONCLUSION ARRIVED AT. REASONS SUBSTITUTE SUBJECTI VITY BY OBJECTIVITY. THE EMPHASIS ON RECORDING REASONS IS THAT IF THE DECISION REVEALS THE INSCRUTABLE FACE OF THE S PHINX, IT CAN, BY ITS SILENCE, RENDER IT VIRTUALLY IMPOSSIBLE FOR THE COURTS TO PERFORM THEIR APPELLATE FUNCTION OR EXERC ISE THE POWER OF JUDICIAL REVIEW ON ADJUDGING THE VALIDITY OF THE DECISION. RIGHT TO REASON IS AN INDISPENSABLE PART OF A SOUND JUDICIAL SYSTEM; REASONS AT LEAST SUFFICIENT TO INDICATE AN APPLICATION OF MIND TO THE MATTER BEFOR E COURT. ANOTHER RATIONALE IS THAT THE AFFECTED PARTY CAN KN OW WHY THE DECISION HAS GONE AGAINST HIM. ONE OF THE SALU TARY REQUIREMENTS OF NATURAL JUSTICE IS SPELLING OUT REA SONS FOR THE ORDER MADE; IN OTHER WORDS, A SPEAKING-OUT. TH E INSCRUTABLE FACE OF THE SPHINX IS ORDINARILY INCO NGRUOUS WITH A JUDICIAL OR QUASI-JUDICIAL PERFORMANCE. 10 ITA NO. 260/COCH/2013 A FEEBLE ARGUMENT WAS ADVANCED THAT THE COMMISSIONER OF INCOME TAX BEING HIGHER IN HIERARCH Y THAN ADDITIONAL COMMISSIONER OF INCOME TAX, THE INITIATION OF THE PROCEEDINGS AT THE INSTANCE OF AD DITIONAL COMMISSIONER OF INCOME TAX IS BAD. IN VIEW OF OUR ABOVE CONCLUSION THAT THE ORDER DROPPING THE PROCEEDING UNDER SECTION 12A WAS NOT A VALID ACTION ON THE PART OF THE COMMISSIONER OF INC OME TAX, THE SAID ARGUMENT IS REJECTED. HAVING REGARD TO WHAT HAS BEEN SAID ABOVE. WE FIND THAT IT IS A CASE WHERE THE THEN ASSESSING OFF ICER (SHRI BHOPAL SINGH), THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-II, MUZAFFARNAGAR AND SHRI KUNDAN MISRA, THE THEN COMMISSIONER OF INCOME TAX, MUZAFFARNAGAR WHO PASSED THE ORDER DATED 25.1.2008 HAVE ABDICATED THEIR DUTIES. THE COURT IN THE EXER CISE OF SUPERVISORY JURISDICTION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA CANNOT BE A MUTE SPECTATOR. SUCH ACTIONS ON THE PART OF THE DEPARTMENT NOT ONLY BRIN G DISREPUTE TO THE DEPARTMENT BUT ALSO ENCOURAGE THE DISHONEST ASSESSEES AND PROMOTES THE NEFARIOUS ACTIVITIES WHICH NOT ONLY CAUSES LOSS TO REVENUE BU T ALSO PROMOTES DISHONESTY. AN HONEST TAX PAYER FEELS CHE ATED. LET THE MATTER BE EXAMINED BY THE CHIEF COMMISSIONE R OF INCOME TAX AND APPROPRIATE DEPARTMENTAL PROCEEDINGS MAY BE TAKEN OUT AGAINST THE ERRING OFFICIALS. A C OPY OF THIS JUDGMENT MAY ALSO BE SENT TO THE CHAIRMAN OF T HE CENTRAL BOARD OF DIRECT TAXES FOR AN APPROPRIATE AC TION. 8. WE ALSO FIND THAT THE APEX COURT IN THE CASE OF APPROPRIATE AUTHORITY, AHMEDABAD & ANOTHER VS HINDUMAL BALMUKAN D INVESTMENT CO PVT LTD & ANOTHER (2001) 251 ITR 660 (SC) FOUND THAT A SPEAKING ORDER MUST SPEAK FOR ITSELF AND A REFERENCE TO SHOW CAUSE NOTICE IS 11 ITA NO. 260/COCH/2013 UNCALLED FOR. IT IS ALSO WELL SETTLED PRINCIPLES O F LAW THAT JUDICIAL ORDER SHALL SPEAK FOR ITSELF AND THE REASON FOR THE CONCL USION REACHED IN THE JUDICIAL ORDER SHALL CONTAIN IN THE ORDER ITSELF. REASON FOR A DECISION CANNOT BE SUBSTITUTED OR SUPPLEMENTED BY WAY OF AN AFFIDAVIT OR OTHERWISE. 9. IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND TO THE CLAIM MADE BY THE ASSESSEE TOWARDS PAYM ENT OF COMMISSION TO MANAGING DIRECTOR, WHOLE TIME DIRECTO R AND VICE PRESIDENT (MARKETING). IN FACT, APPLICATION OF MIN D DOES NOT REFLECT IN THE ASSESSMENT ORDER. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE EXERCISE OF REVISIONAL JURISDICTIO N U/S 263 OF THE ACT BY THE ADMINISTRATIVE COMMISSIONER. 10. WE MAKE IT CLEAR THAT THE ASSESSING OFFICER SHA LL INDEPENDENTLY EXAMINE THE CLAIM MADE BY THE ASSESSEE TOWARDS COMM ISSION TO MANAGING DIRECTOR, WHOLE TIME DIRECTOR AND VICE PRE SIDENT (MARKETING) WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE BY THE COMMISSIONER IN THE IMPUGNED ORDER OR BY THIS TRIBU NAL IN THIS ORDER 12 ITA NO. 260/COCH/2013 AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH L AW AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. WITH THE ABOVE OBSERVATIONS, THE ORDER OF THE A DMINISTRATIVE COMMISSIONER IS CONFIRMED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH AUGUST, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 16 TH AUGUST, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 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