ACIT, Kottayam V. M/s Oil Palm India Ltd, Kottayam

ITA 378/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58244 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 09-02-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: PREETHA S NAIR
• Keywords: Opportunity of being heard
• Section: 43B

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. 378/COCH/2010 ASSESSMENT YEAR: 2007-08 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM VS. M/S. OIL PALM INDIA LTD., PB. NO. 1715, KOTTYAM SOUTH P.O.KOTTAYAM. [PAN: AAACO 3695G] (REVENUE-APPELLANT) (ASSESSEE RESPONDENT) ASSESSEE BY SMT. PREETHA S. NAIR, ADV. REVENUE BY MS. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 09/02/2012 DATE OF PRONOUNCEMENT 10/02/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 25-3-2010 PASSED BY THE LD CIT(A)-IV, KOCHI AND IT RELATES TO THE A SSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED BY THE REVENUE ARE RELATE D TO A SINGLE ISSUE, VIZ., ABOUT THE DEDUCTIBILITY OF AGRICULTURAL INCOME TAX WHILE COMP UTING THE INCOME. 3. WE HAVE HEARD THE PARTIES ON THIS ISSUE. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT THE ASSESSEE HAD ALSO PREFERRED AN A PPEAL AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A) AND THE SAID APPEAL HAS SINCE BEEN DISPO SED OF BY THE TRIBUNAL. SHE FURTHER SUBMITTED THAT THE ASSESSEE HAD ALSO CHALLENGED THE ORDER OF LD CIT(A) ON THE IMPUGNED ISSUE RAISED BY THE REVENUE AND THE TRIBUNAL HAS SE T ASIDE THE SAME TO THE FILE OF THE LD. I.T.A. NO. 378/COCH/2010. 2 CIT(A), SINCE THE FIRST APPELLATE AUTHORITY HAD FAI LED TO DISPOSE OF THE SAME, THOUGH IT WAS AGITATED BEFORE HIM. THE LD. AR ALSO PRODUCED A CO PY OF THE ORDER PASSED BY THE TRIBUNAL IN THE APPEAL OF THE ASSESSEE NUMBERED AS I.T.A. NO. 381/COCH/2001. 4. WE NOTICE THAT THE ASSESSEE HAD RAISED THE I MPUGNED ISSUE OF DEDUCTION OF AGRICULTURAL INCOME TAX AS AN ADDITIONAL GROUND AND THE SAME WAS ADMITTED BY THE TRIBUNAL AND IT WAS REMITTED BACK TO THE FILE OF TH E LD. CIT(A). FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT OBSERVAT IONS MADE BY THE TRIBUNAL:- AFTER HEARING SMT. PREETHA S.NAIR, LD. COUNSEL FOR THE ASSESSEE AND THE LD. SR. DR DR. BABU JOSEPH, WE ARE OF THE VIEW THAT THE ADDITIONAL GROUND AS RAISED BEFORE THE LD. CIT(APPEALS) ON 16-02-2010 WA S NOT AT ALL ADJUDICATED. A PHOTOCOPY OF THE SAME IS PLACED AT P AGE 5 OF THE PAPER BOOK. WE HAVE ALSO PERUSED. TO MEET THE ENDS OF JUSTICE, WE ADMIT THIS ADDITIONAL GROUND AS IT IS A MISTAKE AS IT WAS NOT ADJUDICATED BY THE LD. CIT(APPEALS). THE ASSESSEE FAILED TO MENTION THIS IN THE REGULAR GROUNDS OF APPEAL BEFORE THE TRIBUNAL. SINCE THE LD. CIT(APPEALS) FAILED TO CONSIDER THIS ADDITIONAL GROUND, WE REMIT THIS ADDITIONAL GROUND BACK TO THE FILE OF THE LD. CIT(APPEALS) FOR DECISION IN ACCORDANCE WITH LAW, P ARTICULARLY THE QUANTUM OF AGRICULTURAL INCOME-TAX WHICH WAS STATED TO BE ARREARS HAS TO BE ADJUDICATED WITH RELEVANCE TO THE RIGOR OF SECTI ON 43B FOR THE AMOUNT OF DEDUCTION. THE LD. CIT(APPEALS) SHOULD AFFORD SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, THE LD. SR. D R WOULD SUBMIT THAT THIS IS EXCESS CLAIM, FOR THAT THERE IS NO PROOF AVAILAB LE ON RECORD. WE ARE UNABLE TO ACCEPT THE ARGUMENT OF THE LD. SR. DR, AS THIS WAS NOT THE ISSUE BEFORE US. AS THE LD. CIT(APPEALS)FAILED TO CONSID ER THE ADDITIONAL GROUND, WE CONFINED OURSELVES TO REMIT THE ADDITIONAL GROUN D TO THE FILE OF THE CIT(APPEALS), WHO WILL DECIDE THE ISSUE AFTER AFFOR DING SUFFICIENT OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. AS THE REVENUE IS ALSO HAVING AN OPPORTUNITY TO PUT FORTH THE CASE, WHATEV ER THE OBJECTION OF THE DEPARTMENT MAY BE PUT FORTH BEFORE THE LD. CIT(APPE ALS). I.T.A. NO. 378/COCH/2010. 3 5. SINCE THE ISSUE CONTESTED BEFORE US BY THE REVEN UE HAS ALREADY BEEN REMITTED TO THE FILE OF THE LD. CIT(A) BY THE TRIBUNAL IN THE ORDER PASSED IN THE ASSESSEES APPEAL, WE THINK IT PROPER TO SET ASIDE THE SAME TO THE FILE O F THE LD. CIT(A). AS OBSERVED BY THE TRIBUNAL, THE DEPARTMENT MAY ADVANCE THEIR VIEW POI NT BEFORE LD CIT(A). WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED AS PARTLY ALLOWED. PRONOUNCED ACCORDINGLY ON 10-02-2012. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 10TH FEBRUARY, 2012 GJ COPY TO: 1. M/S. OIL PALM INDIA LTD., PB. NO. 1715, KOTTYAM SOUTH P.O.KOTTAYAM. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, KOTTAYAM 3 THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KO CHI.. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6.. GUARD FILE . BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN BENCH