Sri.B.Rajan, Trivandrum V. The ITO, Wd-1(2), Trivandrum

ITA 396/COCH/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2380 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Keywords: Unexplained investment; Search and seizure; Assessment record; Condonation of delay
• Section: 132; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJAR I, AM & SHRI GEORGE GEORGE K, JM ITA NO. 393 /COCH/201 9 : ASST.YEAR 2006 - 2007 ITA NO. 394 /COCH/201 9 : ASST.YEAR 2007 - 2008 ITA NO. 395 /COCH/201 9 : ASST.YEAR 2009 - 2010 ITA NO. 396 /COCH/201 9 : ASST.YEAR 2010 - 2011 SRI.B.RAJAN MELPURA THARRISU PUTHEN VEEDU, PARASSUVAIKKAL NEYYATINKARA TRIVANDRUM 695 503. PAN : AQSPR6100Q . VS. THE INCOME TAX OFFICER WARD 1(2) TRIVANDRUM. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI. MATHEW JOSEPH RESPONDENT BY : SMT.A.S.BINDHU, SR.DR DATE OF HEARING : 2 2 .08.201 9 DATE OF PRONOUNCEMENT : 04 .0 9 .2019 O R D E R PER GEORGE GEORGE K, JM THESE APPEALS AT THE INSTANCE OF THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS), DATED 14.09.2018 . THE RELEVANT ASSESSMENT YEARS ARE 2006 - 2007, 2007 - 2008, 2009 - 2010 AND 2010 - 2011. COMMON ISSUES ARE RAISED IN THESE APPEALS, HENCE, THEY WERE HEARD TOGETHER AND ARE BEING D ISPOSED OF BY THIS CONSOLIDATE ORDER. 2. THERE IS A DELAY OF 176 DAYS IN FILING THESE APPEALS. THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY AND ALSO AN AFFIDAVIT STATING THEREIN THE REASONS FOR BELATED FILING OF THESE APPEALS. WE HAVE PERUS ED THE REASONS STATED FOR FILING ITA NO. 393 - 396 / COCH /201 9 SRI. B.RAJAN . 2 THE APPEAL S BELATEDLY. WE FIND THAT THERE IS SUFFICIENT CAUSE FOR THE DELAYED FILING OF THE APPEAL S AND NO LATCHES CAN BE ATTRIBUTED TO THE ASSESSEE. HENCE, WE CONDONE THE DELAY AND PROCEED TO DISPOSE OFF THE APPEALS ON MER ITS. 3. BRIEF FACTS OF THE CASE ARE AS FOLLOWS: - THE ASSESSEE IS A INDIVIDUAL. FOR THE ASSESSMENT YEARS 2006 - 2007, 2007 - 2008, 2010 AND 2010 - 2011 , THE ASSESSEE DID NOT FILE THE RETURN OF INCOME BECAUSE ACCORDING TO HIM, HE WAS NOT HAVING ANY TAXABLE INCOME . THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T.ACT IN ASSESSEES BROTHERS PREMISES (SRI.B.VIJAYAN). DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS AND MATERIALS CONNECTED WITH THE ASSESSEE WITH REGARD TO INVESTMENT AND BUSINESS TRANSACTION WAS FOUND AND SEIZED. AFTER THE ASSESSMENT PROCEEDINGS U/S 153A OF THE I.T.ACT WAS COMPLETED IN THE CASE OF ASSESSEES BROTHER, THE ASSESSMENT U/S 143(3) R.W.S. 153C OF THE I.T.ACT WAS COMPLETED IN ASSESSEES CASE FOR AS SESSMENT YEARS 2006 - 2007 TO 2009 - 2010. 4. AGGRIEVED BY THE ADDITIONS MADE IN ASSESSMENTS COMPLETED U/S 143(3) R.W.S. 153 IN ASSESSEES CASE, THE ASSESSEE PREFERRED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A), BY A CONSOLIDATED ORDER DATED 14. 09.2018, CONFIRMED THE ADDITION FOR ASSESSMENT YEARS 2006 - 2007, 2007 - 2008, 2010 AND 2010 - 2011. [APPEAL FOR ASSESSMENT YEAR 2008 - 2009 IS YET TO BE DISPOSED BY THE CIT(A)] . ITA NO. 393 - 396 / COCH /201 9 SRI. B.RAJAN . 3 5. AGGRIEVED BY THE ORDER OF THE CIT(A) FOR ASSESSMENT YEARS 2006 - 2007, 2007 - 2008, 2010 AND 2010 - 2011, THE ASSESSEE PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. THE ASSESSEE HAS RAISED GROUNDS WITH REGARD TO THE ADDITION ON MERITS AND ALSO RAISED A LEGAL GROUND WITH REGARD TO THE ASSESSMENT ORDER S PASSED U/S 143(3) R.W.S. 153C OF THE I.T .ACT, BEING TIME BARRED. THE ASSESSEE HAS FILED A PETITION FOR ADMISSION OF THE ADDITIONAL GROUND, SINCE THE LEGAL GROUND WAS NOT RAISED BEFORE THE INCOME - TAX AUTHORITIES. THE LEARNED AR SUBMITTED THAT THE ADDITIONAL GROUND RAISED IS A PURE LEGAL GROUND, W HICH DOES NOT REQUIRE ANY EXAMINATION OF FACTS AND IN VIEW OF THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL CO. LTD. V. CIT [(1998) 229 ITR 383 (SC)] , THE ADDITIONAL GROUND RELATING TO THE ASSESSMENT BEING TIME BARRED NEEDS TO BE ADMITTED AND ADJUDICATED. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS PASSED BY THE INCOME - TAX AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. THE DETAILS OF THE ADDITION , WHICH ARE SUBJECT MATTER OF ADJUDICATION BEFORE US, READS AS FOLLOW: - ASST. YEAR NATURE OF ADDITIONS AMOUNT (RS.) 2006 - 2007 UNEXPLAINED INVESTMENT 2,56,812 2007 - 2008 UNEXPLAINED INVESTMENT 3,22,184 2009 - 2010 SHORT TERM CAPITAL GAINS 4,14,300 2010 - 2011 UNEXPLAINED INVESTMENT 3,10,000 ITA NO. 393 - 396 / COCH /201 9 SRI. B.RAJAN . 4 6.1 THE ASSESSEE HAS ALSO RAISED THE LEGAL ISSUE THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 153C OF THE I.T.ACT IS BARRED BY LIMITATION. IT WAS THE CONTENTION OF THE LEARNED AR THAT AS PER THE 2 ND PROVISO TO SECTION 153B OF THE I.T.ACT, THE ASSESSMENT ORDER OUGHT TO HAVE BEEN COMPLETED ON OR BEFORE 31.12.2011. IT WAS SUBMITTED THAT THE ASSESSMENTS IN THESE CASES HAVE BEEN COM PLETED SUBSEQUENT TO 31.12.2011 AND HENCE THE ASSESSMENT ORDER IS TIME BARRED. THE ASSESSEE HAS FILED THE PETITION FOR ADMISSION OF ADDITIONAL GROUND BECAUSE THE LEGAL ISSUE REGARDING THE ASSESSMENT BEING TIME BARRED WAS NOT RAISED BEFORE THE INCOME - TAX AU THORITIES. WE FIND THAT THE ISSUE RAISED BY THE ASSESSEE WITH REGARD TO THE ASSESSMENT BEING TIME BARRED BY LIMITATION IS A PURE LEGAL ISSUE, WHICH DOES NOT REQUIRE ANY EXAMINATION OF FRESH FACTS. THEREFORE, GOING BY THE DICTUM LAID DOWN BY THE HONBLE APE X COURT IN THE CASE OF NATIONAL THERMAL CO. LTD. V. CIT (SUPRA) , WE ADMIT THE ADDITIONAL GROUND FOR ADJUDICATION. 6.2 ON A QUERY FROM THE BENCH, THE LEARNED DR SUBMITTED THAT THE ASSESSMENT RECORDS ARE NOT READILY AVAILABLE WITH HER. T HE ASSESSMENT RECORDS NEEDS TO BE EXAMINED TO DETERMINE WHETHER THE ASSESSMENT IS BARRED BY LIMITATION IN VIEW OF THE 2 ND PROVISO TO SECTION 153B OF THE I.T.ACT. MOREOVER, WE FIND THAT THE CIT(A) HAD DISPOSED OFF THE APPEAL FILED BY THE ASSESSEE EX PARTE . THE CIT(A) IN THE IMPUGNED ORDER HAS STATED THAT THE CASE WAS POSTED FOR HEARING ON THREE OCCASIONS, HOWEVER, THERE WAS NO RESPONSE FROM THE ASSESSEE, ITA NO. 393 - 396 / COCH /201 9 SRI. B.RAJAN . 5 HENCE, HE DISPOSED OFF THE APPEAL FILED BY THE ASSESSEE EX PARTE . IN THE INTEREST OF JUSTICE AND EQUITY, AS A LAST CHANCE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PLACE HIS CONTENTIONS BEFORE THE CIT(A). AS STATED EARLIER, WE HAVE ALREADY ADMITTED THE ADDITIONAL GROUND WITH REGARD TO THE ISSUE THAT ASSESSMENT IS TIME BARRED . SINCE THE CIT(A)S ORDER WAS AN EX PARTE ORDER AND HE DID NOT HAVE AN OCCASION TO CONSIDER THE LEGAL ISSUE NOW RAISED BEFORE US, THE ENTIRE CASE IS RESTORED TO THE CIT(A). IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THIS 04 TH DAY OF SEPTEMBER , 2019 . SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN ; DATED : 04 TH SEPTEMBER , 2019 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPELLANT 2. THE RESPONDENT. 3. THE PR.CIT, KOTTAYAM. 4. THE CIT(APPEALS) KOTTAYAM. 5. DR, ITAT, COCHIN 6 . GUARD FILE.