T.O.Thomas, Trivandrum V. ITO, Trivandrum

ITA 402/COCH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61559 (ITAT-COCHIN)
• Duration Of Justice: 42 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2012
• Appeal Filed By: Assessee
• Assessment Year: misc
• Appeal Filed On: 01-01-1970
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Section: 263; 63; 2

Judgement Text

1 ITA NO. 402/COCH/2011 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. 402/COCH/2011 (ASSESSMENT YEAR 2007-08) SHRI T.O. THOMAS VS THE ITO, WD.2(3) 802-B, PRASANTH NAGAR TRIVANDRUM MEDICAL COLLEGE PO THIRUVANANTHAPURAM PAN : AAEPO5186F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL D NAIR RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 21-06-2012 DATE OF PRONOUNCEMENT : 27-07-2012 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 PASSED IN EXERCISE OF HIS POWERS U/S 2 63 OF THE INCOME-TAX ACT FOR THE ASSESSMENT YEAR 2007-08. 2. SHRI ANIL D NAIR, THE LD.COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE IS T.O. THOMAS; THE ASSESSMENT ORDER WAS PASSED AGAIN ST SHRI THOMAS T OMANA; THE ADDRESS IS MENTIONED AT 802-PRASANTH NAGAR, MEDICAL COLLEGE PO, TRIVANDRUM. ACCORDING TO THE LD.COUNSEL, AT THE ABOVE ADDRESS T HE ASSESSEE IS RESIDING. HOWEVER, NO SUCH PERSON AS MENTIONED IN THE ASSESSMENT ORDER IS RESIDING AT THE ABOVE ADDRESS. THIS FACT WAS BROUGHT TO THE NOTICE OF THE ADMINISTRATIV E COMMISSIONER AND THE ASSESSING OFFICER; HOWEVER, NO ONE CONSIDERED THE SAME. MORE OVER, THE MONEY SAID TO BE 2 ITA NO. 402/COCH/2011 RECEIVED FROM DR KURUVILA JOHN WAS IN THE FINANCIAL YEAR 2003-04 RELEVANT TO ASSESSMENT YEAR 2004-05. NO MONEY WAS RECEIVED DURING THE YEA R UNDER CONSIDERATION. EVEN THOUGH THIS WAS EXPLAINED TO THE ADMINISTRATIVE COM MISSIONER, HE HAS NOT CONSIDERED THE SAME. ON A QUERY FROM THE BENCH AS TO WHETHER THE PERMANENT ACCOUNT NUMBER MENTIONED AT COLUMN NO.2 OF THE ASSESSMENT ORDER DO ES PERTAIN TO THE ASSESSEE OR NOT, THE LD.COUNSEL FOR THE ASSESSEE VERY FAIRLY CONCEDE D THAT THE PERMANENT ACCOUNT NUMBER MENTIONED IN THE ASSESSMENT ORDER IS THAT OF THE ASSESSEE. THE LD.COUNSEL SUBMITTED THAT THE ASSESSING OFFICER MAY BE SPECIFI CALLY DIRECTED TO CONSIDER THE YEAR IN WHICH MONEY WAS RECEIVED BY THE ASSESSEE FROM DR KU RUVILA JOHN. 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THE PERMANENT ACCOUNT NUMBER MENTIONED IN THE ASSESSMENT ORDER RE LATES TO THE ASSESSEE; THEREFORE, THE ASSESEE CANNOT SAY THAT THE ASSESSMENT ORDER DO ES NOT PERTAIN TO THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE, THERE MAY BE A TYPOGRAPHICAL ERROR IN THE NAME OF THE ASSESSEE, BUT THAT CANNOT BE A REASON TO CLAIM THAT THE ASSESSMENT ORDER AND THE ORDER OF THE ADMINISTRATIVE COMMISSIONER DO NOT REL ATE TO THE ASSESSEE. THE VERY FACT THAT THE ASSESSEE HAS RECEIVED MONEY FROM DR KURUVI LA JOHN SHOWS THAT THE ORDER PASSED BY THE ADMINISTRATIVE COMMISSIONER RELATES T O THE ASSESSEE. THEREFORE, THE ASSESSEE CANNOT NOW SAY THAT THE ASSESSMENT ORDER D OES NOT RELATE TO HIM. THE LD.DR PLEADED THAT THE ADMINISTRATIVE COMMISSIONER HAS RI GHTLY EXERCISED HIS JURISDICTION U/S 263 OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT THAT THE MO NEY WAS RECEIVED BY THE ASSESSEE FROM DR. KURUVILA JOHN IS NOT DISPUTED. WHAT IS DI SPUTED IS THE FINANCIAL YEAR IN WHICH THE MONEY WAS ACTUALLY RECEIVED. ACCORDING TO THE ASSESSEE, THE MONEY WAS RECEIVED DURING THE FINANCIAL YEAR 2003-04; THEREFORE, IT CA NNOT BE ADDED DURING THE YEAR UNDER CONSIDERATION. HOWEVER, IT IS OPEN TO THE ASSESSEE TO BRING MATERIAL ON RECORD IN CASE HE IS NOT THE ASSESSEE MENTIONED IN THE ASSESSMENT ORDER. IF SUCH MATERIALS ARE BROUGHT 3 ITA NO. 402/COCH/2011 ON RECORD, THE ASSESSING OFFICER SHALL DECIDE WHETH ER THE ASSESSMENT PROCEEDINGS ARE AGAINST THE PRESENT ASSESSEE OR OF ANY OTHER PERSON . 5. NOW COMING TO THE YEAR OF RECEIPT OF MONEY FROM DR KURUVILA JOHN, THE ASSESSEE SPECIFICALLY CLAIMS THAT MONEY WAS RECEIVED IN THE YEAR 2003-04 AND NOT DURING THE YEAR UNDER CONSIDERATION. THE RECEIPT OF MONEY WAS NOT CONSIDERED BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREF ORE, THE ADMINISTRATIVE COMMISSIONER FOUND THAT THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THIS TRIBUNAL IS OF THE OPINION THAT IN T HE ABSENCE OF ANY ENQUIRY CONDUCTED BY THE ASSESSING OFFICER AND FAILURE OF THE ASSESSING OFFICER TO RECORD A FINDING WOULD CLEARLY ENTITLE THE ADMINISTRATIVE COMMISSIONER TO EXERCISE HIS POWERS U/ 263 OF THE INCOME- TAX ACT. THEREFORE, WE DO NOT FIND ANY INFIRMITY I N THE ORDER OF THE ADMINISTRATIVE COMMISSIONER. HOWEVER, WHILE EXAMINING THE MATTER AS DIRECTED BY THE ADMINISTRATIVE COMMISSIONER, THE ASSESSING OFFICER SHALL ALSO EXAM INE THE YEAR IN WHICH THE MONEY WAS ACTUALLY RECEIVED BY THE ASSESSEE. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH JULY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 27 TH JULY, 2012 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