DCIT, Calicut V. Smt.K.Sreeja, Kannur

ITA 406/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69103 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-11-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 06-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: C B M WARRIER
• Keywords: Charitable institution; Additional evidence

Judgement Text

1 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 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.305 TO 309/COCH/2013 (ASSESSMENT YEARS 2003-04 TO 2007-08) M/S MALABAR EDUCATIONAL & VS A.C.I.T., CENT.CIR.1 CHARITABLE TRUST, CASA MAREENA COMPLEX CALICUT TALAP, KANNUR PAN : AACTM3814E (APPELLANT) (RESPONDENT) I.T.A NO.421 TO 427/COCH/2013 (ASSESSMENT YEARS 2003-04 TO 2009-10) DY.CIT, CENT.CIR.1 VS M/S MALABAR EDUCATIONAL & KOZHIKODE CHARITABLE TRUST TALAP, KANNUR PAN : AACTM3814E (APPELLANT) (RESPONDENT) ITA NOS 405 TO 411/COCH/2013 (ASSESSMENT YEARS 2003-04 TO 2009-10) THE DY.CIT, CENT.CIR.1 VS SMT. K SREEJA KOZHIKODE MALABAR ARTS COLLEGE YOGASALA ROAD, KANNUR PAN : AYXPS3606B (APPELLANT) (RESPONDENT) ITA NOS 412 TO 418/COCH/2013 (ASSESSMENT YEARS 2003-04 TO 2009-10) 2 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 THE DY.CIT, CENT.CIR.1 VS SHRI VALSAN MADATHIL KOZHIKODE MADATHIL HOUSE MUNDYAD, KANNUR PAN : ADSPV5424G (APPELLANT) (RESPONDENT) REVENUE BY : SMT. LATHA V KUMAR ASSESSEES BY : SHRI CBM WARRIER DATE OF HEARING : 21-11-2013 DATE OF PRONOUNCEMENT : 29-11-2013 O R D E R PER N.R.S. GANESAN (JM) ALL THE APPEALS OF THE REVENUE AND THE ASSESSEES R ELATE TO THREE INDEPENDENT ASSESSEES. SINCE COMMON ISSUE ARISES F OR CONSIDERATION IN ALL THESE APPEALS, WE HEARD THEM TOGETHER AND DISPO SE OF THEM BY THIS COMMON ORDER. 2. REFERRING TO THE ORDER PASSED BY THE CIT(A) IN T HE CASE OF MALABAR EDUCATIONAL & CHARITABLE TRUST, THE LD.DR SUBMITTED THAT THE CIT(A) DIRECTED THE ASSESSING OFFICER TO FRAME THE ASSESSM ENT AFTER VERIFYING THE BOOKS OF ACCOUNT. THIS DIRECTION AMOUNTS TO REMAND ING BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER. ACCORDING TO TH E LD.DR, THE CIT(A) HAS NO POWER TO REMAND BACK THE MATTER, THEREFORE, THE DIR ECTIONS GIVEN BY THE CIT(A) TO VERIFY THE BOOKS OF ACCOUNT IS BEYOND THE JURISDICTION CONFERRED 3 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 ON HIM UNDER THE INCOME-TAX ACT. THE LD.DR ALSO SU BMITTED THAT THE ASSESSEE ALSO HAS FILED NEW EVIDENCE IN VIOLATIONS OF RULE 46A OF THE I.T. RULES, 1962. THE ASSESSEE, IN FACT, HAS NOT CO-OPE RATED WITH THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS FOR CED TO COMPLETE THE ASSESSMENTS ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. THE CIT(A) ACCEPTED THE ADDITIONAL EVIDENCE WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER AND ALSO DIRECTED THE ASSESSING O FFICER TO REFRAME THE ASSESSMENT ORDERS AFTER VERIFYING THE BOOKS OF ACCO UNT. THEREFORE, ACCORDING TO THE LD.DR, THE CIT(A) HAS EXCEEDED HIS JURISDICTION. 3. REFERRING TO THE APPEALS FILED BY SMT. K SREEJA, THE LD.DR SUBMITTED THAT THE ASSESSEE FILED NEW EVIDENCE IN THE FORM OF ADDITIONAL EVIDENCE IN VIOLATION OF PROVISIONS OF RULE 46A OF THE I.T. RUL ES. THE CIT(A) WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER ACC EPTED THE SAME. THE ASSESSING OFFICER SHOULD HAVE BEEN GIVEN AN OPPORTU NITY TO EXAMINE THE FRESH MATERIAL FILED BEFORE THE CIT(A). IN THE CAS E OF SHRI VALSON MADATHIL ALSO, THE CIT(A) HAS ACCEPTED THE NEW EVIDENCE IN V IOLATION OF RULE 46A OF I.T. RULES. 4 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 4. WE HEARD SHRI C.B.M WARRIER, THE LD.REPRESENTATI VE FOR THE ASSESSEE ALSO. THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMI TTED THAT NO DOUBT, THE ASSESSEE FILED NEW EVIDENCE BEFORE CIT(A). HOWEVER , THE CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO EXAMINE THE MATER IAL AND THEREAFTER COMPLETE THE ASSESSMENTS IN ALL THESE CASES BEFORE THIS TRIBUNAL. THEREFORE, THE DEPARTMENT MAY NOT HAVE ANY GRIEVANC E AT ALL. EVEN OTHERWISE, ACCORDING TO THE LD.REPRESENTATIVE, THE MATERIALS FILED BY THE ASSESSEES BEFORE THE CIT(A) NEED TO BE EXAMINED BY THE ASSESSING OFFICER, THEREFORE, HE HAS NO OBJECTION IN REMANDIN G BACK THE MATTERS TO THE FILE OF THE ASSESSING OFFICER, IN VIEW OF THE POWER S CONFERRED ON THIS TRIBUNAL, FOR FRAMING THE ASSESSMENTS DE NOVO AFTER VERIFICATION OF THE ADDITIONAL EVIDENCE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE I NITIAL STAGE, DUE TO NON CO-OPERATION OF THE ASSESSEES, THE ASSESSING OFFICE R WAS FORCED TO COMPLETE THE ASSESSMENTS ON THE BASIS OF THE MATERI AL AVAILABLE ON RECORD. HOWEVER, THE ASSESSEES FILED NEW MATERIALS IN THE F ORM OF ADDITIONAL EVIDENCE BEFORE THE CIT(A). THEREFORE, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO EXAMINE THE SAME AND COMPLETE THE ASSESS MENTS. AS RIGHTLY 5 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 SUBMITTED BY THE LD.DR, THE CIT(A) HAS NO POWER OF REMAND UNDER THE INCOME-TAX . AT THE BEST, THE CIT(A) MAY CALL FOR REMAND REPORT AND THEREAFTER HE MAY DECIDE THE APPEALS ON MERIT. THE CIT(A) FAILED TO GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSING OFFICER WHI LE ACCEPTING THE ADDITIONAL EVIDENCE AS REQUIRED UNDER RULE 46A OF THE I.T. RUL ES. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE VERIFIED BY THE ASSESSING OFFICER ON THE BASIS OF THE ADDITIONA L MATERIAL FILED BY THE ASSESSEE BEFORE CIT(A). THE LD.REPRESENTATIVE ALSO HAS NO OBJECTION TO REMAND THE MATTERS BACK TO THE FILE OF THE ASSESSIN G OFFICER TO COMPLETE THE ASSESSMENTS DE NOVO AFTER VERIFICATION OF THE ADDIT IONAL MATERIALS FILED BY THE ASSESSING OFFICER. SINCE THE ADDITIONAL EVIDEN CE FILED BY THE ASSESSEE NEEDS TO BE CONSIDERED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS NOT GIVEN ANY OPPORTUNITY BY THE CIT(A) WHILE A DMITTING THE ADDITIONAL EVIDENCE, THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THE ASSESSING OFFICER HAS TO RECONSIDER THE MATTERS AFRESH. ACCO RDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSU E ARISE FOR CONSIDERATION IN THE APPEALS UNDER CONSIDERATION IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXA MINE INDEPENDENTLY EACH AND EVERY ISSUE INVOLVED IN THE APPEALS AND THEREAF TER COMPLETE THE ASSESSMENTS ON MERIT IN ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY 6 ITA NO.405-411/COCH/2013 ITA NO.412-418/COCH/2013 ITA NO.305-309/COCH/2013 ITA NO.421-427/COCH/2013 ANY OF THE OBSERVATIONS MADE BY THE CIT(A) IN THE I MPUGNED ORDERS OR BY THIS TRIBUNAL IN THIS ORDER. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH NOVEMBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH NOVEMBER, 2013 PK/- COPY TO: 1. M/S MALABAR EDUCATIONAL & CHARITABLE TRUST, CASA MAREENA COMPLEX YOGASALA ROAD, KANNUR / SHRI VALSAN MADATHIL, MADAT HIL HOUSE, MUNDYAD, KANNUR / SMT. K SREEJA, MALABAR ARTS COLLE GE, YOGASALA ROAD, KANNUR 670 002 2. THE DY.CIT, CENT.CIR.1, KOZHIKKODE 3. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-I, 2 ND FLOOR, SAN JUAN TOWERS, OLD RAILWAY STATION ROAD, ERNAKUILAM NORTH, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH