DCIT, Kollam V. JOB G OOMMEN, Kollam

ITA 261/COCH/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73890 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 31-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2011
• Court: TRIBUNAL
• Department Lawyers: VANI RAJ
• Keywords: Opportunity of being heard; Proportionate interest
• Section: 143(3)

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 NO. 261/COCH/2011 ASSESSMENT YEAR: 2008-09 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOLLAM. VS. JOB G. OOMMEN, M/S. PENIEL CASHEW CO., PUTHOOR, KOTTARAKARA, KOLLAM. [PAN:AADPO 9275G] (REVENUE-APPELLANT) (ASSESSEE -RESPONDE NT) REVENUE BY MS. VANI RAJ, JR. DR ASSESSEE BY NONE DATE OF HEARING 09-08-2012 DATE OF PRONOUNCEMENT 24-08-2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: IN THIS APPEAL, THE REVENUE IS ASSAILING THE DECIS ION OF LD CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE RELATING TO THE EMPLOYEES CO NTRIBUTION TO PF, ESI ETC. ON THE GROUND THAT THE AO DID NOT MAKE THE SAID DISALLOWANCE IN THE ORDER PASSED U/S 143(3) OF THE ACT. NONE APPEARED ON BEHA LF OF THE ASSESSEE AND HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX PARTE, QUA THE ASSESSEE. 2. THE FACTS RELATING TO THE SAID ISSUE ARE STATED IN BRIEF. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008- 09 DECLARING A TOTAL INCOME OF RS.3,99,640/- AND THE SAME WAS PROCESSED U/S 143(1) OF THE ACT ON 31.3.2000, IN WHICH THE INCOME WAS DETERMINED AT RS.17,71,450/-. SUBSEQUENTLY, THE AO ISSUED NOTICE U/S 143(2) OF THE ACT AND COMPLETED THE ASSE SSMENT U/S 143(3) ON 17.12.2010 BY DETERMINING THE TOTAL INCOME AT RS.24,61,350/-. WHILE DETERMINING THE INCOME, THE AO PROCEEDED FROM THE INCOME DETERMINED IN THE INTI MATION PROCESSED U/S 143(1) OF I.T.A. NO. 261 /COCH/2011 2 THE ACT AND MADE DISALLOWANCES AGGREGATING TO RS.6, 89,895/-, WHICH ARE RELATED TO THE UNDER VALUATION OF CLOSING STOCK AND DISALLOWANCE O F PROPORTIONATE INTEREST. THUS, THE DISALLOWANCE OF EMPLOYEES CONTRIBUTION DOES NOT AR ISE OUT OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. IT APPEARS THAT THE SAID DISALLOWANCE WAS MADE IN THE INTIMATION ISSUED U/S 143(1) OF THE ACT. 3. THE ASSESSEE PREFERRED APPEAL BEFORE LD CIT( A) AND THE FIRST APPELLATE AUTHORITY ALLOWED THE CLAIM OF DEDUCTION TOWARDS EMPLOYEES C ONTRIBUTION BY FOLLOWING THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF V INAY CEMENTS LTD AND ALOM EXTRUSIONS LTD. 4. IT IS THE CONTENTION OF THE LD D.R THAT THE LD CIT(A) HAS ADJUDICATED THE SAID ISSUE WITHOUT APPRECIATING THAT THE SAID DISALLOWANCE WAS NOT MADE IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. WE FIND MERIT IN THE CONTENTION OF THE LD D.R. THE LD CIT(A) HAS FAILED TO NOTE THAT THE DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO PF AND ESI WAS MADE IN THE INTIMATION ISSUED U/S 143(1) OF THE ACT. THE LD CIT(A) HAS DECIDED THE ISSUE ON MERITS WITHOUT ADDRESSING THE QUESTION AS TO WHETHER THE DISALLOWANCES MADE IN THE INTIMATION ISSUED U/S 143(1) OF THE ACT COULD BE RAISED AND ADJUDICATED IN THE APPEAL FILED AGAINST THE ASSESSMENT ORDER PASSE D U/S 143(3) OF THE ACT. HENCE, IN OUR VIEW, THIS LEGAL ISSUE REQUIRES RE-EXAMINATION AT THE END OF THE LD CIT(A). ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE FOR ADJUDICATION OF THE SAME AFRESH, AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD. I.T.A. NO. 261 /COCH/2011 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 24-08-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 24TH AUGUST, 2012 GJ COPY TO: 1. JOB G. OOMMEN, M/S. PENIEL CASHEW CO., PUTHOOR, KOTTARAKARA, KOLLAM. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRA L CIRCLE, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, TRIV ANDRUM. 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) ITAT, COCHIN