Smt.Jalaja Nair, Trivandrum V. The ADIT(Inv), Trivandrum

ITA 44/COCH/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4620 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-05-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 07-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Unexplained investment; Principle of natural justice; Question of law; Cost of acquisition; Onus to prove; Set aside
• Section: 153A; 68; 132; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T . A. NO S . 42, 43 & 44 / COCH / 2019 ASSESSMENT YEA RS : 2004 - 05, 2005 - 06 & 2007 - 08) SMT. JALAJA NAIR, AMRUTHA NAGAR, KAIMANAM, TRIVANDRUM [PAN: A NBPJ 8795P] VS. THE ASST. COMMISSIONER OF INCOME - TAX (INV. CIRCLE) , CENTRAL CIRCLE - 2 , TRIVANDRUM (ASSESSEE - APPELLANT) (REVEN UE - RESPONDENT) A SSESSEE BY SHRI T . M. SREEDHARAN, SR. ADV. REVENUE BY SMT. A.S. BINDHU, SR. DR D ATE OF HEARING 13 /05/2019 DATE OF PRONOUNCEMENT 22 / 05 /201 9 O R D E R PER CHANDRA POOJARI, AM: THESE T HREE APPEALS ARE DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A) - III, KOCHI DATED 17/12/2018 FOR THE ASSESSMENT YEARS 2004 - 05 , 2005 - 06 AND 2007 - 08. IT IS TO BE NOTED THAT THIS IMPUGNED ORDER OF THE CIT(A) IS TO BE READ ALONGWITH THE ORDER OF THE CIT(A) , TRIVANDRUM DATED 30/1/201 7 FOR THE ASSESSMENT YEAR 2004 - 05 . 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE ORIGINALLY CAME IN APPEAL BEFORE THIS TRIBUNAL AGAINST THE DIFFERENT ORDERS OF THE CIT(A) DATE D 30/01/2017 FOR THE ASSESSMENT YEARS 2004 - 05 , 2005 - 06 AND 2007 - 08 ALONG WITH THE GROUNDS RELATING TO THE ADDITIONS MADE BY THE ASSESSING OFFICER ON MERITS. THE ASSESSEE HAS ALSO I.T.A. NO S . 42 - 44 /COCH/201 9 2 RAISED LEGAL GROUND WITH REGARD TO JURISDICTION IN FRAMING OF THE ASSESSMEN T U/S. 153C OF THE I.T. ACT IN ALL THESE ASSESSMENT YEARS. THE TRIBUNAL VIDE ORDER DATED 13/08/2017 IN ITA NOS. 257 TO 259/COCH/2017 AND OTHERS REMITTED THE ISSUE TO THE FILE OF THE CIT(A) WITH THE FOLLOWING OBSERVATIONS: 9 HAVING HEARD BOTH THE PARTIES AND OTHER RELEVANT MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS TAKEN A LEGAL PLEA ON THE VALIDITY OF THE SEARCH PROCEEDINGS INITIATED U/S 132 OF THE ACT, ON THE GROUND THAT THE SEARCH WAS CARRIED IN VIOLATION OF PROVISIONS OF SECTION 132 OF THE ACT A S THERE WAS NO MATERIAL OR EVIDENCE WAS SEIZED AT THE TIME OF SEARCH SHOWING ANY UNDISCLOSED INCOME. SINCE THE LEGAL ISSUE RAISED BY THE ASSESSEE IS EMANATES FROM THE FACTS ALREADY ON RECORD, WE DEEM IT APPROPRIATE TO ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE FOR ADJUDICATION. THIS VIEW WAS SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD (SUPRA) WHEREIN IT WAS HELD THAT THERE IS NO REASON TO RESTRICT THE POWER OF THE TRIBUNAL U/S 254 OF THE ACT ONLY TO DECIDE THE G ROUNDS RAISED FROM THE ORDER OF THE CIT. THE ASSESSEE AS WELL AS THE DEPARTMENT HAS A RIGHT TO FILE APPEAL/CROSS OBJECTION BEFORE THE TRIBUNAL. THERE IS NO REASON WHY THE TRIBUNAL SHOULD BE PREVENTED FROM CONSIDERING THE QUESTION OF LAW ARISING FROM THE AS SESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER. HOWEVER, WE FURTHER NOTICE THAT THIS LEGAL PLEA HAS BEEN TAKEN FIRST TIME BEFORE THE TRIBUNAL AND THE LOWER AUTHORITIES DID NOT HAD AN OCCASION TO CONSIDER THE LEGAL ISSUE RAISED BY THE ASSESSEE. WHET HER THERE WAS AN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR NOT, IS A MATTER OF FACT, WHICH CAN BE FIND OUT FROM THE RECORDS AVAILABLE WITH THE DEPARTMENT. UNLESS THE ASSESSING OFFICER OR THE CIT(A) EXAMINE THE SEARCH FOLDER, IT IS DIF FICULT TO CONCLUDE THAT THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH. SINCE THE LOWER AUTHORITIES DID NOT HAD AN OCCASION TO EXAMINE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF SEARCH PROCEEDINGS IN THE LIG HT OF CLAIM OF THE ASSESSEE, WE DEEM IT APPROPRIATE TO SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A) FOR HIS CONSIDERATION AND DIRECT HIM TO ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE AND ADJUDICATE THE ISSUE AS PER LAW. 10 SINCE WE HAVE SET ASI DE THE ISSUE TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ON THE LEGAL ISSUE OF VALIDITY OF SEARCH PROCEEDINGS, THE GROUNDS RAISED BY THE ASSESSEE, CHALLENGING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON MERI TS HAS NOT BEEN CONSIDER AT THIS JUNCTURE. I.T.A. NO S . 42 - 44 /COCH/201 9 3 11 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 3. IN THE SECOND ROUND, THE CIT(A) CONSIDERED THE ADDITIONAL GROUND WITH REGARD TO JURISDICTION IN FRAMING THE ASSESSMEN T U/S. 153C OF THE ACT WHICH WAS REMITTED TO HIM BY THE TRIBUNAL FOR FRESH CONSIDERATION. THE CIT(A) OBSERVED THAT THE STATEMENT OF BANK ACCOUNT OF THE ASSESSEE FOUND DURING THE COURSE OF SEARCH REVEALED THAT THERE WERE SUBSTANTIAL CASH DEPOSITS. THE SE ARCH RECORDS REVEAL THAT THE RE WAS INCRIMINATING INFORMATION OBTAINED FROM THE BANK STATEMENTS OF THE ASSESSEE UNRAVELED DURING THE SEARCH U/S. 132 OF THE ACT IN THE RELEVANT ASSESSMENT YEARS. IN VIEW OF THE ABOVE FACTS, THE CIT(A) CONFIRMED THE INITIATI ON OF ASSESSMENT PROCEEDINGS U/S. 153C OF THE ACT IN ALL THE ASSESSMENT YEARS. 4. ONCE AGAIN, THE ASSESSEE HA D RAISED THE GROUND RELATING TO THE INITIATION OF ASSESSMENT PROCEEDINGS U/S. 153C OF THE ACT. HOWEVER, AT THE TIME OF HEARING, THE LD. AR MAD E AN ENDORSEMENT THAT THE ASSESSEE WAS NOT INTERESTED TO PRESS THE GROUNDS RELATING TO LEGAL ISSUE BEFORE THE TRIBUNAL. ACCORDINGLY, THESE GROUNDS ARE DISMISSED AS NOT PRESS ED FOR ALL THE ASSESSMENT YEARS . 5. ON MERITS, THE ONLY ISSUE FOR OUR CONSIDER ATION IS WITH REGARD TO SUSTENANCE OF ADDITION S BY THE CIT(A) FOR ALL THE ASSESSMENT YEARS. 6. THE FACTS OF THE CASE ARE THAT FOR THE ASSESSMENT YEAR 2004 - 05, THE ASSESSEE HA D RAISED THE GROUND RELATING TO ADDITION OF RS.16. 5 0 LAKHS. ON EARLIER OCCASI ON, I.T.A. NO S . 42 - 44 /COCH/201 9 4 THE ASSESSEE CHALLENGED THE SUSTENANCE OF ADDITION OF RS.9.5 LAKHS BY THE CIT(A) THE ADDITION OF RS.16.50 LAKHS MADE BY THE ASSESSING OFFICER. IN THE SECOND ROUND, THE CIT(A) ADJUDICATED ONLY THE LEGAL ISSUE OF INITIATION OF ASSESSMENT PROCEEDINGS U/S. 153C OF THE ACT. HE HAS NOT ADJUDICATED THE GROUNDS RELATING TO THE ADDITIONS. ORIGINALLY, THE ASSESSING OFFICER MADE THE FOLLOWING ADDITIONS: A) CASH DEPOSITS OF RS.3 ,50,000/ - THE ASSESSEE CLAIMED THAT SHE RECEIVED A SUM OF RS.3,50,000/ - FROM MR. SURESH BABU AS ADVANCE FOR SALE OF 3 CENTS OF LAND AND DEPOSITED THE SAME INTO THE ABOVE MENTIONED BANK ACCOUNT. THE ASSESSEES EXPLANATION THAT SHE RECEIVED THE SAID SUM AS ADVANCE FROM MR. SURESH BABU FOR THE SALE OF LAND SHE OWNED WAS ACCEPTED AS THE SAME WAS SUPPORTED BY ADVANCE AGREEMENT AND SALE DEED COPES OF WHICH WERE FURNISHED FOR VERIFICATION. THE CIT(A) DELETED THE ADDITION. B) CASH DEPOSIT OF RS.2,50,000/ - ACCORDING TO THE ASSESSEE, THE DEPOSIT WAS MADE OUT OF THE SALE PROCEEDS OF 2.5 CENTS OF LAND TO MR. AMRUTHA KUMAR VIDE DOCUMENT NO.2032/2003 DATED 10/07/2003. THE ASSESSEES EXPLANATION THAT SHE RECEIVED AS ADVANCE FROM ONE MR. AMRUTHA KUMAR FOR THE SALE OF LAND SHE OWNED WAS ACCEPTED SINCE THE SAME WAS SUPPORTED BY ADVANCE AGREEMENT AND SALE DEED COPIES OF WHICH WERE FURNISHED FOR VERIFICATION. THE CIT(A) DELETED THIS ADDITION ALSO. C) CASH DEPOSIT OF RS. 1 LAKH THE CASE OF THE AS SESSMENT WAS THAT THERE WAS NO SUCH ENTRY FOR THE DEPOSIT IN THE BANK ACCOUNT STATEMENT WHICH THE I.T.A. NO S . 42 - 44 /COCH/201 9 5 ASSESSIN G OFFIC ER RELIED UPON. THIS EXPLANATION OF THE ASSESSEE WAS ACCEPTED SINCE NO SUCH ENTRY WAS FOUND RECORDED IN THE ACCOUNT STATEMENT WITH THE KERALA STATE CO - OP ERATIVE BANK LTD., TRIVANDRUM. HENCE , THE CIT(A) DELETED THE ADDITION. 7. REGARDING THE ADDIT ION OF RS.9 LAKHS DEPOSITED IN THE BANK ACCOUNT , T HE ASSESSEE OFFERED THE EXPLA NA TION THAT THE DEPOSIT WAS MADE OUT OF SALE PROCEEDS OF 3.055 CENTS OF LAND AT MANACAUD VILLAGE SOLD VIDE DOCUMENT NO.27448/2001 DATED 18/10/2001. OUT OF SALE PROCEEDS OF RS.1 1,00,000/ - , RS.10,00,000/ - WAS INVESTED IN THE RATION WHOLESALES BUSINESS, M/S. AHAMED & COMPANY AND WITHDRAWN THE SAME ON 10/10/2003 AND REMITTED INTO HER ACCOUNT WITH THE KERALA STATE CO - OPERATIVE BANK LTD. CONTRADICTING THE ABOVE EXPLANATION, IT WAS FU RTHER CONTENDED THAT HER HUSBAND WAS MANAGING PARTNER OF THE FIRM AHAMED & COMPANY AND SOME OF THE SALE PROCEEDS AND DAILY COLLECTIONS OF THE FIRM AMOUNTING TO RS.9 LAKHS WERE GIVEN TO HER IN THE ABSENCE OF HER HUSBAND FROM THE TOWN WHICH IN TURN HAD BEEN DEPOSITED INTO HER ACCOUNT. HOWEVER, DURING THE COURSE OF APPEAL HEARING, THE ASSESSEE CAME OUT WITH DIFFERENT EXPLANATION STATING THAT THE BORROWAL OF RS.9 LAKHS FROM HER SISTER - IN - LAW MRS. KALPANA ON 10/10/2003 WAS ACTUALLY DEPOSITED INTO HER ACCOUNT ON THE SAME DATE. 8. THE CIT(A) REJECTED THE EXPLANATIONS OF THE ASSESSEE SINCE THE VERY EXISTENCE OF THE FIRM M/S. A HAMED & COMPANY HAD NOT BEEN ESTABLISHED BEYOND DOUBT AT ANY POINT OF TIME. SIMILARLY, THE CIT(A) FOUND THAT THE IDENTITY AND CREDITW ORTHINESS OF I.T.A. NO S . 42 - 44 /COCH/201 9 6 MRS. KALPANA HAD NOT BEEN PROVED BEYOND DOUBT AND IT WAS ALSO NOT KNOWN WHEN THE SAID AMOUNT WAS RETURNED TO HER AND WHAT WAS THE SOURCE FOR THAT. IN VIEW OF THE ABOVE, THE CIT(A) CONFIRMED THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED DEPOSIT AMOUNTING TO RS.9 LAKHS. 8.1 AGAIN S T TH IS, THE ASSESSEE IS IN APPEAL BEFORE US. 8.2 THE LD. AR SUBMITTED THAT THE CIT(A) FAILED TO ADJUDICATE THE GROUNDS RELATING TO ADDITIONS MADE BY THE ASSESSING OFFICER ON MERITS. 8.3 THE LD. DR RELIED ON TH E ORDER OF THE CIT(A). 9 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S IN ITA NO.43/COCH/201 9 FOR THE ASSESSMENT YEAR 2005 - 06: 1. THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS) - III , KOCHI IN ITA NO.16 8 ATVM/CLT(A) - W/2010 - 11 DATED 17.12.2018 FOR T HE ASST. YEAR 20 05 - 06 , IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE CIT (A) FURTHER WENT WRONG IN FAILING TO ADJUDICATE THE ISSUE OF SHORT TERM CAPITAL GAIN AMOUNTING TO RS.29,22,500/ - WHICH IS DISPUTED IN THE MEMORANDUM OF APPEAL. . 3. THE CIT(A) SHOULD HAVE FOUND THAT THE ESTIMATION OF SALE CONSIDERATION AT RS.35 LAKHS AND THE COST OF ACQUISITION AT RS.5,77,500/ - WERE BOTH ARBITRARY AND UNSUSTAINABLE. 4. THE ASSESSING AND 1 ST APPELLATE AUTHORITY FAILED TO APPRECIATE THAT THE COST OF I MPROVEMENT/RENOVATION WORK DONE ON THE EXISTING OLD BUILDING ALSO IMPROVED THE VALUE OF THE IMMOVABLE PROPERTY AND SUCH VALUE IS REFLECTED IN THE SALE CONSIDERATION. AS SUCH, THE COST OF IMPROVEMENT SHOULD ALSO HAVE BEEN TAKEN INTO ACCOUNT IN THIS BEHALF. 5. THE LEARNED CIT(A) ALSO GROSSLY ERRED IN NOT ACCEPTING THE SOURCE FOR RS.15 LAKHS, WHICH WERE CONSIDERED AS ACCEPTABLE SOURCE AND WHICH WAS REJECTED ALLEGING WANT OF IDENTITY/DETAILS AND CREDITWORTHINESS OF THE PERSON. I.T.A. NO S . 42 - 44 /COCH/201 9 7 6. IN THIS CONNECTION, IT IS A LSO RESPECTFULLY SUBMITTED THAT THE REASONS STATED FOR REJECTION OF EXPLANATION ARE IN THE REALM OF SUSPICION AND SURMISES AND UNSUPPORTED BY ANY LEGALLY ADMISSIBLE EVIDENCE. 7. IN THIS CONNECTION, IT IS ALSO RESPECTFULLY SUBMITTED THAT THERE IS ALSO FA ILURE ON THE PART OF THE ASSESSING AND THE FIRST APPELLATE AUTHORITY TO APPLY THE PRINCIPLES OF LAW AS REGARDS THE BURDEN OF PROOF IN THE MATTER OF ADJUDICATION OF CREDITS AND BORROWINGS, SO FAR AS THE PROVISIONS CONTAINED IN SECTION 68 AND OTHER CONNECTED STATUTORY PROVISIONS ARE CONCERNED. 8. IT IS ALSO RESPECTFULLY SUBMITTED THAT THE ASSESSING OFFICER WAS WHOLLY UNJUSTIFIED IN PASSING THE ASSESSMENT U/S. 144 WITH O UT AFFORDING ADEQUATE OPPORTUNITY TO OFFER EXPLANATION WITH REGARD TO THE SUBJECT MATTER O F THE ASSESSMENT. THERE IS, THUS, VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, WHICH VITIATE THE ASSESSMENT. 9 . THE CIT (A) WENT WRONG IN DISMISSING THE APPEAL BY CONFINING HIS FINDINGS TO THE VALIDITY OF THE PROCEEDINGS AGAINST THE ASSESSMENT U/S.153C O F THE ACT THEREBY SUSTAINING THE ENTIRE ASSESSMENT WITHOUT GOING INTO THE MERITS OF THE ADDITION. 10. THE APPELLANT RESPECTFULLY SUBMITS THAT THE ASSESSMENT ORDER PASSED U/S.144 R.W.S. 153A OF THE ACT IS ARBITRARY, ILLEGAL AND UNSUSTAINABLE FOR THE REASON THAT SECTION 153A HAS BEEN WRONGLY INVOKED IN THE APPELLANT'S CASE. 11. MOREOVER, NO INCRIMINATING MATERIAL WAS FOUND AGAINST THE APPELLANT SO AS TO ASSUME JURISDICTION U/S.153C (A) OF THE ACT. THE ASSESSMENT PROCEEDINGS INITIATED AGAINST THE APPELLANT A RE, THEREFORE, AB INITIO VOID AND WITHOUT JURISDICTION. 12. THE CIT (A) IS ALSO UNJUSTIFIED IN NOT ADJUDICATING THE ISSUE ON MERITS BUT CONFINING TO THE QUESTION OF VALIDITY OF PROCEEDINGS U/S.153C VIDE LAST PARA OF THE APPELLATE ORDER. 13 IN THIS CONN ECTION, THE CIT (A) OUGHT TO HAVE FOUND AND ACCEPTED THE APPELLANT'S CONTENTION THAT THE FINDING OF THE LEARNED APPELLATE TRIBUNAL TOWARDS THE CONCLUDING PART OF PARA 9 OF THE COMMON ORDER IN ITA NOS.257 /C/2017 DATED 31/08/2017 IN WHICH MISCELLANEOUS APPLI CATIONS WERE SUBMITTED AS REGARDS THE ISSUE RAISED IN MA NOS.22 TO 124/ C /2018 CLARIFIED THE ORDER BY OBSERVING THAT IF THE ASSESSEE IS AGGRIEVED BY CIT(A)S ORDERS PASSED SUBSEQUENT TO THE ITAT ORDER DATED 31/08/2017, CAN FILE APPEALS TO THE ITAT , RAISING ALL ISSUES RAISED IN THE ORIGINAL APPEAL BEFORE THE TRIBUNAL, I.E, ITA NOS.257 TO 259/C/2017. IT IS ORDERED ACCORDINGLY.' IT IS SUBMITTED THAT THE ABOVE SITUATION HAD NOT ARISEN IN THE APPELLANT'S CASE BECAUSE THE CIT (A) HAS NOT PASSED ANY ORDER SUBSEQUE NT TO THE ITAT'S ORDER DATED 31.8.2017 BEFORE PASSING THE ORDER IN MA NOS. 22 TO 24/C/2018 DATED 7.9.2018, WHICH IS THE LAST ORDER PASSED. SO MUCH SO, THE CIT (A) OUGHT TO HAVE ADJUDICATED BOTH THE ISSUES AS REGARDS THE JURISDICTION AND THE MERIT OF THE CA SE. I.T.A. NO S . 42 - 44 /COCH/201 9 8 1 4 . THE APPELLANT FURTHER RESPECTFULLY SUBMITS THAT THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF NTPC LTD. VS. CIT REPORTED IN (1998) 229 ITR 383 AND THE JUDGMENT OF THE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT VS. PROMY KURIAKOSE REPORT ED IN (2016) 386 ITR 597 ALSO SHOULD HAVE CONSIDERED BY THE CIT (A) IN THIS REGARD. 1 5 . MOREOVER, A SPECIFIC FINDING WAS ALSO MADE BY THE APPELLATE TRIBUNAL IN THE ORDER IN ITA NOS. 257 TO 259/C/2017 DATED 31.8.2017 ALONG WITH THE APPEALS FILED BY SHRI K. NANDAKUMAR AND SMT. REMY NANDAKUMAR AND HELD IN PARA 9 THAT WHETHER THERE WAS AN INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR NOT IS A MATTER OF FACT, WHICH CAN BE FOUND OUT FROM THE RECORDS AVAILABLE WITH THE DEPARTMENT. THE ISSUE WAS, THEREFORE, SET ASIDE TO THE FILE OF THE CIT (A) WHEREFROM THE JURISDICTION TO CONSIDER BOTH THE GROUNDS, NAMELY, LEGAL ISSUE REGARDING VALIDITY OF THE SEARCH AS WELL AS ADJUDICATION ON THE MERITS CAME TO BE RESTORED TO THE CIT (A). 1 6 . IT IS SUBMITTED THAT PIECE M EAL ADJUDICATION OF THE APPEAL IS NOT CONTEMPLATED OR PERMITTED U/S. 251 OF THE ACT. UNDER THAT SECTION, THE COMMISSIONER (APPEALS) SHALL HAVE ALL POWERS IN DISPOSING AN APPEAL AGAINST AN ORDER OF ASSESSMENT. HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE AS SESSMENT. SECTION 256(1) (C) FURTHER STIPULATES THAT IN ANY OTHER CASE, THE COMMISSIONER (APPEALS) MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINK FIT. 1 7 . IN THIS CONNECTION, THE APPELLANT ALSO RESPECTFULLY SUBMITS THAT THE HONBLE APEX COURT HAS DEAL WI TH THE ISSUE REGARDING THE POWER OF THE APPELLATE AUTHORITY IN THE LEADING JUDGMENT IN THE CASE OF CIT VS. KANPUR COAL SYNDICATE (1964) (53 ITR 225) (SC). 1 8 . IN THIS CONNECTION, IT IS RESPECTFULLY SUBMITTED THAT THE CIT (A) SHOULD HAVE FOUND THA T THE APPEAL FILED BEFORE HIM REQUIRED ADJUDICATION BOTH IN REGARD TO VALIDITY OF THE PROCEEDINGS AS WELL AS ON MERITS AND THAT IN AN APPEAL PENDING BEFORE HIM, HE IS REQUIRED TO ADJUDICATE ALL ISSUES ARISING FROM OUT OF THE ASST. ORDER AS PER THE JUDGMENT OF THE HON'BLE APEX COURT. 1 9 . THE APPELLANT HUMBLY PRAYS THAT THE GROUNDS OF APPEAL BEFORE THE CIT (A) AS WELL AS BEFORE THIS HON'BLE TRIBUNAL IN ITA NOS.257 TO 259/C/2017 MAY ALSO BE CONSIDERED AS PART OF THESE GROUNDS. 16. THE APPELLANT CRAVES LE AVE TO FILE ADDITIONAL GROUNDS AT THE TIME OF HEARING. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT HUMBLY PRAYS THAT THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, MAY KINDLY BE PLEASED TO SET ASIDE THE OR DER OF THE 1 ST APPELLATE AUTHORITY AND OF THE ASSESSING OFFICER, ALLOW THE APPEAL AND RENDER JUSTICE. I.T.A. NO S . 42 - 44 /COCH/201 9 9 9.1 THE ASSESSEE HAS NOT PRESSED GROUND NOS 2, 3 & 4 AND HENCE, THEY ARE DISMISSED AS NOT PRESSED. 10 . THE FACTS OF THE CASE ARE THAT FO R THE ASSESSM ENT YEAR 2005 - 06, THE ASSESSMENT WAS MADE AS PER ORDER DATED 31.12.2009 U/S 144 R.W.S. 153C OF THE ACT, AFTER ISSUING NOTICE U/S 153C DATED 20.03.2009. THE ASSESSING OFFICER ESTIMATED SHORT TERM CAPITAL GAIN AMOUN TING TO RS.29,22,500/ - . THE ASSESSEE SOLD A PROPERTY CONSISTING OF 9.21 CENTS OF LAND ALONG WITH OLD BUILDING THEREIN AS PER DOCUMENT NO.1469/2005 EXECUTED ON 31.03.2005 IN FAVOUR OF SHRI. BYJU DEVARAJ AND SMT. SIMI FOR RS.19,50,000/ - . THE ASSESSING OFFICER DETERMINED THE CAPITAL GAIN BY MAKING TWO ADJUSTMENTS NAMELY (1) NO AMOUNT WAS ALLOWED TOWARDS REPAIRS OF THE BUILDING BUT CONSIDERED RS.5,77,500/ - AS THE COST OF THE PROPERTY BEING RS. 5 LAKHS AS THE CONSIDERATION AND RS.77,500/ - AS THE EXPENDITURE ON STAMP DUTY AND REGISTRATION. (2) THE SE COND ADJUSTMENT WAS THAT THE SALE CONSIDERATION OF R.19,50,000/ - WAS ENHANCED TO RS.35 LAKHS BY REJECTING THE SALE VALUE AS PER THE SALE DEED. 1 1 . ON APPEAL, THE CIT(A) CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER. 1 2 . A GAINST THIS, THE ASSESS EE IS IN APPEAL BEFORE US. 1 2 .1 THE LD. AR SUBMITTED THAT THE C ONSIDERATION RECEIVED FOR THE SALE WAS RS.19,50,000/ - , WHICH IS APPORTIONED IN THE DOCUMENT TOWARDS VALUE OF LAND OF I.T.A. NO S . 42 - 44 /COCH/201 9 10 RS.9,50,000 / - AND VALUE OF BUILDING OF RS.10 LAKHS ) . IT WAS SUBMITTED THA T THE ASSESSEE HAD SPENT A SUM OF RS.14,25,000/ - ON RENOVATION OF THE BUILDING, SINCE THE BUILDING WAS A PRETTY OLD AT THE TIME OF PURCHASE AND NEEDED SUBSTANTIAL REPAIRS. THE PROPERTY WAS PURCHASED ON 0 2.08.2003 AND SOLD IN 31.03.2005 . SOON AFTER THE PURC HASE, THE REPAIRS WERE COMMENCED AND BEFORE IT COULD BE COMPLETED , THERE WAS AN OFFER FOR PURCHASE FROM SHRI. BYJU DEVARAJ AND THE ASSESSEE AGREED TO SELL THE HOUSE FOR RS.19,50,000/ - . A SUM OF RS.50,000/ - WAS SPENT AS BROKERAGE AND N ET CONSIDERATION RECEIV ED WAS RS.19,50,000/ - . IT WAS SUBMITTED THAT THE VALUE WA S APPORTIONED BETWEEN LAND VALUE AND BUILDING VALUE AT RS.9,50,000/ - AND RS.10 LAKHS RESPECTIVELY IN THE SALE DEED. THE LD. AR SUBMITTED THAT WITHOUT DISCLOSING THE STATEMENT OF SHRI BYJU DEVARAJ, TH E PURCHASER OF THE PROPERTY THAT THE CONSIDERATION PAID WAS RS.35 LAKHS, THE ASSESSING OFFICER FIXED THE SALE VALUE AT RS.35 LAKHS. THE ASSESSING OFFICER DETERMINED THE CAPITAL GAIN A T RS.29,22,5 0 O/ - (DIFFERENCE BETWEEN RS.35 LAKHS - RS.5 , 77,500/ - ). ACCO RDING TO THE LD. AR THERE WAS NO CAPITAL GAIN ARISING OUT OF THE TRANSACTION, BECAUSE, THE COST OF IMPROVEMENT CARRIED OUT TO THE BUILDING BEFORE SALE IS TO BE TAKEN INTO ACCOUNT AND SECONDLY, THE ENHANCEMENT OF THE SALE CONSIDERATION FROM RS.19.5 LAKHS TO RS.35 LAKHS WAS CONTRARY TO THE CONSIDERATION AS PER THE REGISTERED SALE D EED AND SUCH VALUE WAS S ADMITTED AND DECLARED BEFORE THE SUB REGISTRAR AT THE TIME OF REGISTRATION. IT WAS SUBMITTED THAT THE ASSESSING OFFICER ALSO DID NOT AFFORD REASONABLE OPPOR TUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI. BYJU DEVARAJ, WHOSE STATEMENT WAS RELIED ON FOR MAKING THE ADDITION. IT WAS SUBMITTED THAT THERE WAS ALSO A CO - OWNER, SMT. SIMI WHO HA D PURCHASED THE PROPERTY ALONG SHRI. BYJU DEVARAJ, WH O WAS ALSO NOT EXAMINE D. IN I.T.A. NO S . 42 - 44 /COCH/201 9 11 THIS CONNECTION, THE LD. AR SUBMITTED THAT THE ASSESSEE HAD ALREADY PRODUCED IN THE COURSE OF THE HEARING A NOTE WHICH WAS SUBMITTED BEFORE THE CIT(A) ALONG WITH THE ACCOMPANYING STATEMENTS WHICH ALSO MAY KINDLY BE CONSIDERED. 1 2 . 2 IT WAS SUBMI TTED THAT THE CLAIM OF RENOVATION WORK CARRIED OUT THROUGH M/S. OMEGA CONSTRUCTIONS TO THE BUILDING BEFORE SALE WAS ALSO MADE BEFORE THE CIT(A) . HOWEVER, THE CIT(A) DID NOT CONSIDER THE ISSUE MERELY ON PRESUMPTIONS AND SURMISES AND WITHOUT CONSIDERING THE DOCUMENTARY EVIDENCE PRODUCED BEFORE HIM. THUS, IT WAS PR AYED THAT THE DOCUMENTS PRODUCED BEFORE THE CIT(A) MAY KINDLY BE CONSIDERED AFRESH. 12.3 THE LD. DR RELIED ON THE ORDER OF THE CIT(A). 1 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITA NO. 44/COCH/2019 FOR THE ASSESSMENT YEAR 2007 - 08 : 1. THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS) - III , KOCHI IN ITA NO.169ATVM/CLT(A) - W/2010 - 11 DATED 17.12.2018 FOR THE ASST. YEAR 2007 - 08, IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE . 2. THE CIT (A) FURTHER WENT WRONG IN FAILING TO ADJUDICATE THE ADDITION OF RS.7,59,875/ - IN THE COMPUTATION OF TOTAL INCOME. 3. THE ASSESSING AND THE FIRST APPELLATE AUTHORITY FAILED TO APPRECIATE THAT THE CREDITORS MRS. TARA SA N A DANAN AND HER HUSBAND , MR. SANADANAN HAD ADEQUATE RESOURCES TO EXTEND FINANCIAL HELP TO THE APPELLANT, WHICH HAS ALSO BEEN CONFIRMED BY THE CREDITORS AND EVIDENCE IN SUPPORT THEREOF, PRODUCED BEFORE THE ASSESSING AND APPELLATE AUTHORITIES. 4. IT IS FURTHER RESPECTFULLY SUBMIT TED THAT SIMILAR ISSUE RAISED IN THE MEMORANDUM OF APPEAL FOR THE ASST. YEAR 2005 - 06 AND PRIOR YEAR MAY KINDLY BE CONSIDERED AS PART OF THESE GROUND S . I.T.A. NO S . 42 - 44 /COCH/201 9 12 5. THE CIT (A) WENT WRONG IN DISMISSING THE APPEAL BY CONFINING HIS FINDINGS TO THE VALIDITY OF THE PROCEEDINGS AGAINST THE ASSESSMENT U/S.153C OF THE ACT WITHOUT GOING INTO THE MERITS OF THE ADDITION. 6. THE APPELLANT RESPECTFULLY SUBMITS THAT THE ASSESSMENT ORDER PASSED U/S.144 R.W.S. 153A OF THE ACT IS ARBITRARY, ILLEGAL AND UNSUSTAINABLE FOR TH E REASON THAT SECTION 153A(C) HAS BEEN WRONGLY INVOKED IN THE APPELLANT'S CASE. 7. IT IS ALSO SUBMITTED THAT NO INCRIMINATING MATERIAL WAS FOUND AGAINST THE APPELLANT SO AS TO ASSUME JURISDICTION U/S.153C OF THE ACT. THE ASSESSMENT PROCEEDINGS INITIATED AGAINST THE APPELLANT ARE, THEREFORE, AB INITIO VOID AND WITHOUT JURISDICTION. 8. THE CIT (A) IS ALSO UNJUSTIFIED IN NOT ADJUDICATING THE ISSUE ON MERITS BUT CONFINING TO THE QUESTION OF VALIDITY OF PROCEEDINGS U/S.153C VIDE LAST PARA OF THE APPELLATE OR DER. 9. IN THIS CONNECTION, THE CIT (A) OUGHT TO HAVE FOUND AND ACCEPTED THE APPELLANT'S CONTENTION THAT THE FINDING OF THE LEARNED APPELLATE TRIBUNAL TOWARDS THE CONCLUDING PART OF PARA 9 OF THE COMMON ORDER IN ITA NOS.257 /C/2017 DATED 31/08/2017 IN WHI CH MISCELLANEOUS APPLICATIONS WERE SUBMITTED AS REGARDS THE ISSUE RAISED IN MA NOS.22 TO 124/C/2018 CLARIFIED THE ORDER BY OBSERVING THAT IF THE ASSESSEE IS AGGRIEVED BY CIT(A)S ORDERS PASSED SUBSEQUENT TO THE ITAT ORDER DATED 31/08/2017, CAN FILE APPEAL S TO THE ITAT , RAISING ALL ISSUES RAISED IN THE ORIGINAL APPEAL BEFORE THE TRIBUNAL, I.E, ITA NOS.257 TO 259/C/2017. IT IS ORDERED ACCORDINGLY.' IT IS SUBMITTED THAT THE ABOVE SITUATION HAD NOT ARISEN IN THE APPELLANT'S CASE BECAUSE THE CIT (A) HAS NOT PAS SED ANY ORDER SUBSEQUENT TO THE ITAT'S ORDER DATED 31.8.2017 BEFORE PASSING THE ORDER IN MA NOS. 22 TO 24/C/2018 DATED 7.9.2018, WHICH IS THE LAST ORDER PASSED. SO MUCH SO, THE CIT (A) OUGHT TO HAVE ADJUDICATED BOTH THE ISSUES AS REGARDS THE JURISDICTION A ND THE MERIT OF THE CASE. 10. THE APPELLANT FURTHER RESPECTFULLY SUBMITS THAT THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF NTPC LTD. VS. CIT REPORTED IN (1998) 229 ITR 383 AND THE JUDGMENT OF THE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT VS. PROMY KURIAKOSE REPORTED IN (2016) 386 ITR 597 ALSO SHOULD HAVE CONSIDERED BY THE CIT (A) IN THIS REGARD. 11. MOREOVER, A SPECIFIC FINDING WAS ALSO MADE BY THE APPELLATE TRIBUNAL IN THE ORDER IN ITA NOS. 257 TO 259/C/2017 DATED 31.8.2017 ALONG WITH THE APPEALS FILED BY SHRI K. NANDAKUMAR AND SMT. REMY NANDAKUMAR AND HELD IN PARA 9 THAT WHETHER THERE WAS AN INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR NOT IS A MATTER OF FACT, WHICH CAN BE FOUND OUT FROM THE RECORDS AVAILABLE WITH THE DEPARTMENT. THE ISSUE WAS, THEREFORE, SET ASIDE TO THE FILE OF THE CIT (A) WHEREFROM THE JURISDICTION TO CONSIDER BOTH THE GROUNDS, NAMELY, LEGAL ISSUE I.T.A. NO S . 42 - 44 /COCH/201 9 13 REGARDING VALIDITY OF THE SEARCH AS WELL AS ADJUDICATION ON THE MERITS CAME TO BE RESTORED TO THE CIT (A). 12. IT IS SUBMITTED THAT PIECE MEAL ADJUDICATION OF THE APPEAL IS NOT CONTEMPLATED OR PERMITTED U/S. 251 OF THE ACT. UNDER THAT SECTION, THE COMMISSIONER (APPEALS) SHALL HAVE ALL POWERS IN DISPOSING AN APPEAL AGAINST AN ORDER OF ASSESSMENT. HE MAY CONFIRM, REDUCE, E NHANCE OR ANNUL THE AS SESSMENT. SECTION 256(1) (C) FURTHER STIPULATES THAT IN ANY OTHER CASE, THE COMMISSIONER (APPEALS) MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINK FIT. 13. IN THIS CONNECTION, THE APPELLANT ALSO RESPECTFULLY SUBMITS THAT THE HONBLE APEX COURT HAS DEAL WITH THE ISSUE REGARDING THE POWER OF THE APPELLATE AUTHORITY IN THE LEADING JUDGMENT IN THE CASE OF CIT VS. KANPUR COAL SYNDICATE (1964) (53 ITR 225) (SC). 14. IN THIS CONNECTION, IT IS RESPECTFULLY SUBMITTED THAT THE CIT (A) SHOULD HAVE FOUND THAT THE APPEAL FILED BEFORE HIM REQUIRED ADJUDICATION BOTH IN REGARD TO VALIDITY OF THE PROCEEDINGS AS WELL AS ON MERITS AND THAT IN AN APPEAL PENDING BEFORE HIM, HE IS REQUIRED TO ADJUDICATE ALL ISSUES ARISING FROM OUT OF THE ASST. ORD ER AS PER THE JUDGMENT OF THE HON'BLE APEX COURT. 15. THE APPELLANT HUMBLY PRAYS THAT THE GROUNDS OF APPEAL BEFORE THE CIT (A) AS WELL AS BEFORE THIS HON'BLE TRIBUNAL IN ITA NOS.257 TO 259/C/2017 MAY ALSO BE CONSIDERED AS PART OF THESE GROUNDS. 16. T HE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUNDS AT THE TIME OF HEARING. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT HUMBLY PRAYS THAT THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, MAY KINDLY BE PLEAS ED TO SET ASIDE THE ORDER OF THE 1 ST APPELLATE AUTHORITY AND OF THE ASSESSING OFFICER, ALLOW THE APPEAL AND RENDER JUSTICE. 1 3 .1 THE ASSESSEE HAS NOT PRESSED GROUND NOS 2, 3 & 4 AND HENCE, THEY ARE DISMISSED AS NOT PRESSED. 1 4 . THE FA CTS OF THE CASE ARE THAT FOR THE A SSESSMENT YEAR 2007 - 08, IN THE ASSESSMENT ORDER DATED 31.12.2009, THE ASSESSING OFFICER HAS MADE THE FOLLOWING TWO ADDITIONS: UNEXPLAINED INVESTMENTS - RS.6,03,950/ - I.T.A. NO S . 42 - 44 /COCH/201 9 14 UNEXPLAINED INVESTMENTS - RS.1,55,925/ - T HE ASSESSING OFF ICER MADE TWO ADDITIONS VIZ. ADVANCE PAID TO MS. T.A.OMANA - RS.5,00,000/ - PURCHASE OF 5 CENTS OF PROPERTY FROM MR SAHADEVAN VIDE DOCUMENT NO.874/2007 - RS.1,03,950/ - RS.6,03,950/ - THE NEXT ADDITION OF RS.1,55,925/ - RELATES TO ESTIMATED COST OF THE REMAINING 7.5 CENTS OF LAND IN WHICH THE HOUSE WAS CONSTRUCTED. THE COST OF 7.5 CENTS WAS ESTIMATED P ROPORT IONATELY. 1 5 . ON APPEAL, T HE CIT(A) CONFIRMED BOTH THE ADDITIONS OF RS.6,03,950/ - AND RS.7,62,008/ - . 16 . AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 16. 1 THE LD. AR SUBMITTED THAT THE ACTUAL PRICE OF THE LAND ALONG WITH STAMP DUTY WAS S ONLY RS.1,48,400/ - AND NOT RS.1,55,925/ - FOR THE PROPERTY PURCHASED FROM SHRI. VIJAYAN. IT WAS SUBMITTED THAT T HE PROPERTY PURCHASED FROM SHRI VIJAYAN WAS FOR RS.1,40,000/ - , WHICH WAS PAID, OUT OF THE SUM OF RS.1,50,000/ - AVAILED AS FINANC IAL ASSISTANCE FROM SMT. TARA SADANANDAN, KAIMANAM, THIRUVANANTHAPURAM WHO HA D DRAWN THE AMOUNT FROM HER BANK ACCOUNT AND EVIDENCE THEREOF ALONG WITH HER CONFIRMATION, WERE PRODUCED BEFORE THE CIT(A) AND A COPY OF THE PU RCHASE D OCUMENT WAS ALSO PRODUCED HEREWITH FOR VERI FICATION. I.T.A. NO S . 42 - 44 /COCH/201 9 15 16. 2 SO FAR AS THE SECOND PROPERTY IS CONCERNED, IT WAS SUBMITTED THAT THIS WAS PURCHASED FROM THE PREVIOUS OWNER SHRI SAHADEVAN FOR A SUM OF RS.90,000/ - AND IS SUPPORTED BY THE SALE DEED. IT WAS SUBMITTED THAT FOR THE PURCHASE OF THE ABOVE PROPERTY, THE ASSESSEE WITHDREW THE AMOUNT FROM HER BANK ACCOUNT IN STATE CO - OPERATIVE BANK ON THAT DATE. THE LD. AR SUBMITTED THAT HER EXPLANATION ALONG WITH A PHOTO COPY OF THE BANK ACCOUNT MAY BE ACCEPTED AS SUPPORTED BY EVIDENCE AND PROOF. 16. 3 TH E LD. AR SUBMITTED THAT THE SECOND ADDITION OF RS.5,00,000/ - INCLUDED IN THE UNEXPLAINED INVESTMENT OF RS.6,03,950/ - WAS BASED ON AN AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND SMT. T.A. OMANA ON 17 TH JULY 2006 BY WHICH THE ASSESSEE AGREED TO PURCHASE A PROPERTY BELONGING TO SMT. OMANA FOR RS.30 LAKHS AND ALSO AGREED TO PAY AN ADVANCE OF RS.5 LAKHS. ACCORDING TO THE LD. AR, THIS TRANSACTION DID NOT MATERIALIZE AND N EITHER ADVANCE WAS PAID NOR THE PROPERTY WAS PURCHASED. IT WAS SUBMITTED THAT THE AGR EEMENT WAS NOT PERFORMED AND AS SUCH THE ESTIMATED ADDITION OF RS.5 LAKHS FOR INVESTMENT IN PURCHASE OF IMMOVABLE PROPERTY DID NOT TAKE PLACE. THE LD. AR SUBMITTED THAT S INCE THE TRANSACTION DID NOT MATERIALIZE, THE QUESTION OF PAYMENT OF ADVANCE DID NOT ARISE. THE REFORE, THE ADDITION IS TO BE VACATED. 16 .4 REGARDING THE OB S ERVATION MADE BY THE ASSESSING OFFICER THAT THE ASSESSEE MADE INVESTMENT TOWARDS PURCHASE OF IMMOVABLE PROPERTY BY PAYING ADVANCE OF RS.5 LAKHS ON 17.7.2006 TO MS T.A. OMANA , IT WAS SUBMITTED THAT IT WAS CONTRARY TO I.T.A. NO S . 42 - 44 /COCH/201 9 16 THE FACTS AND EVIDENCE ON RECORD. IT WAS SUBMITTED THAT BOTH THE ASSESSING OFFICER AND THE CIT(A) DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE . THE MATTER WAS TAKEN BEFORE THE TRIBUNAL WHICH REMANDED THE ISSUE BACK TO THE FILEOF THE CIT(A). HENCE, IT WAS SUBMITTED THAT THE ADDITION OF RS.5 LAKHS MAY BE DELETED. 17 . THE LD. DR RELIED ON THE ORDER OF THE CIT(A). 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. FOR ALL THE ASSESSMENT YEARS, THE CIT(A) HAD CONSIDERED THE ADDITIONAL GROUND WITH REGARD TO JURISDICTION IN FRAMING THE ASSESSMENT U/S. 153C OF THE ACT WHICH WAS REMITTED TO HIM BY THE TRIBUNAL FOR FRESH CONSIDERATION. THE CIT(A) OBSERVED THAT THERE WAS INCRIMINATING INFORMATION OBTAINE D FROM THE BANK STATEMENTS OF THE ASSESSEE UNRAVELED DURING THE SEARCH U/S. 132 OF THE ACT IN THE RELEVANT ASSESSMENT YEARS. IN VIEW OF THE ABOVE FACTS, THE CIT(A) CONFIRMED THE INITIATION OF ASSESSMENT PROCEEDINGS U/S. 153C OF THE ACT IN ALL THE ASSESSM ENT YEARS. HOWEVER, HE HAS NOT AT ALL ADJUDICATED THE ADDITIONS MADE BY THE ASSESSING OFFICER ON MERITS. HENCE, WE ARE I NCLINED TO REMIT THE ISSUE TO T H E FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION IN ALL THE THREE ASSESSMENT YEARS AS THE ORD ER OF THE ASSESSING OFFICER WA S PASSED EX PARTE U/S 144 OF THE ACT. THE APPEAL S OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO S . 42 - 44 /COCH/201 9 17 19. IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND MA Y, 2019 . SD/ - SD/ - (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 22 ND MAY , 2019 GJ COPY TO: 1 . SMT. JALAJA NAIR, AMRUTHA NAGAR, KAIMANAM, TRIVANDRUM. 2. THE ASST. COMMISSIONER OF INCOME - TAX (INV. CIRCLE), CENTRAL CIRCLE - 2, TRIVANDRUM 3 . THE COMMISSIONER OF INCOME - TAX (AP P EALS) - III , KO CHI. 4. THE COMMISSIONER OF INCOME - TAX, CENTRAL, KOCHI. 5 . D. R., I.T.A.T., COCHIN BENCH, COCHIN. 6 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN