K JAYAKUMAR, COIMBATORE V. ITO, NCC-1(4), COIMBATORE

ITA 3267/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5723 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 1997-1998
• Appeal Filed On: 30-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R ANITHA
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , ! ' # , % #& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NOS.3267 & 3268/CHNY/2018 ) *) / ASSESSMENT YEARS : 1997-98 & 1998-99 SHRI K. JAYAKUMAR, 405 (OLD NO.45), RANGAI GOWDER STREET, NEAR RAJA STREET, COIMBATORE 641 001. PAN : AACPJ 6805 G V. THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE 1(4), 67-A, RACE COURSE ROAD, COIMBATORE. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ./,- 0 1 / RESPONDENT BY : MS. R. ANITHA, JCIT 2 0 3% / DATE OF HEARING : 04.09.2019 45* 0 3% / DATE OF PRONOUNCEMENT : 01.10.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) -2, COIMBATORE, DATED 24.10.2018 AND PERTAIN TO ASSESSM ENT YEARS 2 I.T.A. NOS.3267 & 3268/CHNY/18 1997-98 AND 1998-99. THEREFORE, WE HEARD BOTH THE APPEALS TOGETHER AND DISPOSING THE SAME BY THIS COMMON ORDE R. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IN BOT H THE APPEALS IS THE COST OF CONSTRUCTION. ACCORDING TO THE LD. COUNSEL , FOR THE ASSESSMENT YEAR 1997-98, THE MATTER TRAVELLED UPTO MADRAS HIGH COURT AND THE MADRAS HIGH COURT FOUND THAT THE COST OF CONSTRUCTION HAS TO BE REWORKED AND TO BE DISTRIBUTED FOR THE AS SESSMENT YEARS 1997-98 AND 1998-99 BY TAKING THE STATE PWD RATE FO R CONSIDERATION. ON THE BASIS OF THE ORDER OF THE MA DRAS HIGH COURT, THE ASSESSING OFFICER REWORKED THE COST OF CONSTRUC TION AS PER STATE PWD RATE AND DETERMINED THE SAME AT 1,24,78,138/-. ACCORDING TO THE LD. COUNSEL, THE DIFFERENCE IN THE COST OF CONS TRUCTION DISCLOSED BY THE ASSESSEE AND DETERMINED BY THE ASSESSING OFF ICER AS PER THE STATE PWD RATE WAS APPORTIONED BETWEEN THE ASSE SSMENT YEARS 1997-98 AND 1998-99. ACCORDING TO THE LD. CO UNSEL, FOR THE ASSESSMENT YEAR 1997-98, THE ASSESSING OFFICER APPO RTIONED THE COST OF CONSTRUCTION AT 10,88,030/- AND FOR THE ASSESSMENT YEAR 1998-99 IT WAS 4,02,426/-. 3 I.T.A. NOS.3267 & 3268/CHNY/18 3. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT WHEN THE APPEAL OF THE REVENUE FOR T HE ASSESSMENT YEAR 1998-99 CAME BEFORE THE HIGH COURT, THE HIGH C OURT FOUND THAT THE DIFFERENCE IN THE COST OF CONSTRUCTION SHALL BE DETERMINED AT 8 LAKHS AND IT SHALL BE APPORTIONED FOR THE ASSESSMEN T YEARS 1997-98 AND 1998-99. IN FACT, THE TRIBUNAL FOR THE ASSESSM ENT YEAR 1998-99 FIXED THE COST OF CONSTRUCTION AT 8 LAKHS AND IT WAS CONFIRMED BY THE HIGH COURT. ONCE IT IS CONFIRMED BY THE HIGH C OURT, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) IS NOT CORRECT IN ACCEPTING THE COST OF CONSTRUCTION DETERMINED BY THE ASSESSING OF FICER. 4. WE HEARD MS. R. ANITHA, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., TH E HIGH COURT FOR THE ASSESSMENT YEAR 1997-98 DIRECTED THE ASSESSING OFFICER TO RE- ESTIMATE THE COST OF CONSTRUCTION AND DECIDE THE DI STRIBUTION OF THE SAME FOR ASSESSMENT YEARS 1997-98 AND 1998-99. ACC ORDINGLY, THE ASSESSING OFFICER ESTIMATED THE DIFFERENCE IN THE C OST OF CONSTRUCTION AND APPORTIONED THE SAME. SUBSEQUENTL Y, ACCORDING TO THE LD. D.R., THE HIGH COURT FOUND THAT THE TRIBUNA L ACCEPTED THE OFFER OF THE ASSESSEE THAT THE DIFFERENCE IN THE CO ST OF CONSTRUCTION IS ONLY 8 LAKHS AND THE SAME HAS TO BE DISTRIBUTED EQUALLY FOR 4 I.T.A. NOS.3267 & 3268/CHNY/18 ASSESSMENT YEARS 1997-98 AND 1998-99. THE ORDER OF THIS TRIBUNAL FOR ASSESSMENT YEAR 1998-99 ACCEPTING THE OFFER OF THE ASSESSEE TO DETERMINE THE DIFFERENCE IN THE COST OF CONSTRUCTIO N AT 8 LAKHS WAS ALSO CONFIRMED BY THE HIGH COURT. THEREFORE, ACCOR DING TO THE LD. D.R., THE ASSESSING OFFICER BY FOLLOWING THE EARLIE R ORDER OF THE HIGH COURT, DETERMINED THE COST OF CONSTRUCTION AND THE DIFFERENCE IN THE COST OF CONSTRUCTION WAS APPORTIONED FOR THE ASSESS MENT YEARS 1997-98 AND 1998-99. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ONLY ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS IS DET ERMINATION OF DIFFERENCE IN THE COST OF CONSTRUCTION AND APPORTIO NMENT OF THE SAME FOR THE ASSESSMENT YEARS 1997-98 AND 1998-99. AS R IGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE AND LD . D.R., FOR THE ASSESSMENT YEAR 1997-98, THE HIGH COURT REMITTED BA CK THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE DIFFERENCE IN THE COST OF CONSTRUCTION AND ALSO TO DISTRIBUTE THE DIF FERENCE FOR THE ASSESSMENT YEARS 1997-98 AND 1998-99. ACCORDINGLY, THE ASSESSING OFFICER DETERMINED THE DIFFERENCE IN THE COST OF CONSTRUCTION AT 14,90,456/-. THE ASSESSING OFFICER DISTRIBUTED THE 5 I.T.A. NOS.3267 & 3268/CHNY/18 COST OF CONSTRUCTION FOR THE ASSESSMENT YEAR 1997-9 8 AT 10,88,030/- AND FOR THE ASSESSMENT YEAR 1998-99 AT 4,02,426/-. SUBSEQUENTLY, FOR THE ASSESSMENT YEAR 1998-99, THE HIGH COURT CONFIRMED THE ORDER OF THIS TRIBUNAL WHEREIN THE DI FFERENCE IN THE COST OF CONSTRUCTION WAS DETERMINED AT 8 LAKHS AND IT IS TO BE DISTRIBUTED FOR THE ASSESSMENT YEARS 1997-98 AND 19 98-99. THEREFORE, THERE WAS A CONFUSION WHETHER THE DIFFER ENCE IN THE COST OF CONSTRUCTION IS TO BE TAKEN AT 14,90,456/- AS DETERMINED BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR 1997-98 AND 1 998-99 OR AT 8 LAKHS AS CONFIRMED BY THE HIGH COURT FOR ASSESSME NT YEAR 1998- 99. 6. UNDER NORMAL CIRCUMSTANCES, THIS TRIBUNAL WOULD HAVE REMITTED BACK THE MATTER FOR RECONSIDERATION. HOWE VER, WE ARE NOT DOING SO SINCE THE ASSESSMENT YEARS UNDER CONSIDERA TION ARE 1997- 98 AND 1998-99. AFTER A LAPSE OF TWENTY YEARS, REM ANDING BACK THE MATTER MAY NOT SERVE ANY PURPOSE. MOREOVER, TAKING INTO CONSIDERATION OF THE MONETARY LIMIT FIXED BY THE CB DT FOR FILING APPEAL FOR FILING APPEAL BEFORE THE TRIBUNAL AND OT HER FORUMS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LITI GATION HAS TO BE BROUGHT TO AN END AT THIS STAGE INSTEAD OF DRAGGING THE MATTER 6 I.T.A. NOS.3267 & 3268/CHNY/18 FURTHER IN ONE WAY OR OTHER. THEREFORE, BY KEEPING THE INTEREST OF JUSTICE IN MIND, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DIFFERENCE IN THE COST OF CONSTRUCTION AS CONFIRMED BY THE HIGH COURT FOR ASSESSMENT YEAR 1998-99 HAS TO BE ADOPTED AND I T HAS TO BE DISTRIBUTED EQUALLY FOR ASSESSMENT YEARS 1997-98 AN D 1998-99. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BEL OW ARE MODIFIED AND THE ASSESSING OFFICER IS DIRECTED TO TAKE THE D IFFERENCE IN THE COST OF CONSTRUCTION AT 8 LAKHS AND DISTRIBUTE THE SAME EQUALLY FOR ASSESSMENT YEARS 1997-98 AND 1998-99. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 1 ST OCTOBER, 2019 AT CHENNAI. SD/- SD/- ( ! ' # ) ( . . . ) (INTURI RAMA RAO) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 1 ST OCTOBER, 2019. KRI. 7 I.T.A. NOS.3267 & 3268/CHNY/18 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 ;3 () /CIT(A)-2, COIMBATORE 4. PRINCIPAL CIT- 1. COIMBATORE 5. 9< .3 /DR 6. ) = /GF.