Sri.P.J.Peter, Cochin V. The ITO, Cochin

ITA 474/COCH/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96788 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 21-09-2015
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Keywords: Search and seizure; Opportunity of being heard
• Section: 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH C OCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM I.T.A. NO.474 /COCH/2015 ASSESSMENT YEAR : 2007-08 SHRI P.J. PETER, PEEJAY CONSTRUCTIONS, ALUMCHUVADU., KOCHI-682 024. [PANAFNPP 3505J] VS. THE INCOME TAX OFFICER, WARD- 2(3), KOCHI. (ASSESSEE -APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY NONE REVENUE BY SHRI SHANTAM BOSE, CIT(DR) DATE OF HEARING 23/11/2015 DATE OF PRONOUNCEMENT 23 /11/2015 O R D E R PER B.P.JAIN, ACCOUNTANT MEMBER: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORD ER OF THE LD. CIT(A)-II, KOCHI DATED 30-09-2014 FOR THE ASSESSMENT YEAR 2007 -08. 2. THE ASSESSEE HAS RAISED AS MANY AS 9 GROUNDS OF APPEAL WHICH ARE READ AS UNDER: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(APP EALS) IS OPPOSED TO LAW FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX(APPEALS) HAS ERR ED IN DISMISSING THE APPEAL IN LIMINE FOLLOWING THE DECISION IN 38IT D 320 WHICH IS NOT APPLICABLE TO THE FACTS OF THE CASE. I.T.A. NO.474/COCH/2015 2 3. THE COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT T O HAVE FOUND THAT THE SAID DECISION WAS IN RESPECT OF THE APPEAL BEFORE THE HONBLE TRIBUNAL BASED ON RULE 19 OF APPELLATE TRIBUNAL RUL ES AND THE SAID DECISION HAS NOTHING TO DO WITH THE 1 ST APPEAL. 4. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE FOUND THAT EVEN AS PER THE NOTICE ISSUED IT WAS SPECIFICA LLY STATED THAT ATTENDANCE IS NOT NECESSARY, IF THE ASSESSEE WISH T HAT THE APPEAL MAY BE DECIDED ON THE BASIS OF WRITTEN SUBMISSIONS. 5. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE FOUND THAT AS HELD BY THE APEX COURT IN 74 ITR 41 HE WAS BOUND TO GO INTO THE CORRECTNESS OR OTHERWISE OF THE POINTS DECIDE B Y THE ASSESSING AUTHORITY IN THE LIGHT OF THE GROUNDS OF APPEAL WHI CH CAN BE DONE ONLY BY GIVING A DECISION ON THE MERITS ON QUESTION OF F ACT AND LAW AND NOT MERELY DISPOSING OF THE APPEAL ON THE GROUND THAT T HE PARTY CONCERNED HAS FAILED TO APPEAR. 6. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE FOUND THAT BY VIRTUE OF SECTION 251 OF THE ACT HE HAS GOT THE POWER TO CONFIRM REDUCE ENHANCE OR ANNUL THE ASSESSMENT AND BY VIRTUE OF EXPLANATION TO SUB-SECTION (2) HE HAS POWER TO CONS IDER AND DECIDE ANY MATTER ARISING OUT OF THE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOT WITHSTANDING THAT SUCH MATT ER WAS NOT RAISED BEFORE THE COMMISSIONER(APPEALS) BY THE APPELLANT. 7. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE FOUND THAT BASED ON THE GROUNDS, THE ASSESSMENT ORDER IS NULL AND VOID SINCE THE ASSESSMENT IS BASED ON THE SEARCH AND SEIZURE C ONDUCTED AT THE RESIDENCE OF P M MATHEW GROUP OF CASES WHICH SEARCH AND SEIZURE IS COVERED BY THE ORDER OF THIS HONBLE TRIBUNAL IN I. T.A. NO. 348 TO 352/COCH/2012 FOR ASSESSMENT YEARS 2002-03 TO 2006- 07. COPY OF WHICH ORDER IS ANNEXED HERETO AND THE MATTER IS STI LL PENDING BEFORE THE CIT(APPEALS). 8. THE COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE FOUND THAT THE ADDITION MADE OF RS.36,03,500/- IS WITHOUT AUTHORITY OF LAW AND THE ALLEGED RECORDS RELIED ON CANNOT EVEN FORM PART OF THE RECORDS BY VIRTUE OF THE ILLEGAL SEARCH. 9. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE ADVANCED AT THE TIME OF HEARING IT IS PRAYED THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) BE SET ASIDE. I.T.A. NO.474/COCH/2015 3 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A PARTNER IN THE FIRM M/S. PEEJAY CONSTRUCTIONS, KOCHI. THE ASSESSING OF FICER SERVED A NOTICE U/S. 153A R.W.S. 153C OF THE ACT ON THE ASSESSEE BUT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE ISSUED. THE ASSESSEE FIL ED HIS RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED U/S. 142(1) OF THE ACT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S. 153A R.W.S. 153C OF T HE ACT AT A TOTAL INCOME OF RS.37,83,500/-. 4. NONE ATTENDED ON BEHALF OF THE ASSESSEE BEFOR E THE LD. CIT(A) AND THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE. THE REL EVANT FINDINGS IN PARA 4 OF HIS ORDER ARE REPRODUCED HEREINBELOW FOR THE SAK E OF CONVENIENCE: 4. THE CASE WAS FIXED UP FOR HEARING ON 20/09/201 3, 23/10/2013, 19/03/2014 AND NOW ON 04/09/2014. HOWEVER, ON ALL THESE DATES NEITHER ASSESSEE OR ANY A/R HAS ATTENDED NOR ANY AP PLICATION FOR ADJOURNMENT IS RECEIVED. THERE IS NO COMMUNICATION OR INFORMATION AS TO WHY THE APPELLANT CHOSE TO REMAIN ABSENT ON THE DAYS, WHEN THE APPEAL WAS FIXED AND CALLED FOR HEARING. SINCE VAR IOUS NOTICES SENT FROM THIS OFFICE HAVE NOT BEEN RECEIVED BACK UNSERV ED, IT IS PRESUMED THAT THE ASSESSEE HAS RECEIVED ALL THESE NOTICES AN D FOR THE REASONS KNOWN TO HIM, HAS PREFERRED NOT TO PURSUE THIS APPE AL. APPARENTLY, ASSESSEE HAS NO DOCUMENTARY EVIDENCES IN SUPPORT OF GROUNDS OF APPEAL TAKEN BY HIM. THUS FOLLOWING THE DECISION I N THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD., ITAT, DELHI 38 ITD 3 20 (1991), APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE. 5. THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT T HE DECISION BY THE ITAT, DELHI IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. L TD. REPORTED IN (1991) 38 I.T.A. NO.474/COCH/2015 4 ITD 320 IS NOT APPLICABLE TO THE FACTS OF THE CASE AND THE SAID DECISION IS WITH RESPECT TO THE APPEAL FILED BEFORE THE TRIBUNA L BASED ON RULE 19 OF THE APPELLATE TRIBUNAL RULES AND THE SAID DECISION HAS NOTHING TO DO WITH THE 1 ST APPEAL. HE FURTHER ARGUED THAT THE LD. CIT(A) SHO ULD HAVE DECIDED THE MATTER ON THE BASIS OF THE WRITTEN SUBMISSION BEFOR E HIM ON MERIT WHICH HAS NOT BEEN DONE BY THE LD. CIT(A) . THE LD. COUNS EL FOR THE ASSESSEE PRAYED TO SET ASIDE THE MATTER TO THE FILE OF THE L D. CIT(A) TO DECIDE THE ISSUE DE NOVO ON MERIT BY AFFORDING ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. 6. THE LD. DR ON THE OTHER HAND RELIED UPON THE ORDER OF THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. AT THE OUTSET, IT IS VERY RELEVANT TO READ SECTION 250(6) OF THE ACT WHICH IS REPRODUCED HEREIN BELOW:- (6) THE ORDER OF THE COMMISSIONER(APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. BY READING THE PROVISIONS OF SECTION 250(6), IT IS EVIDENT THAT THE SAID PROVISIONS ARE MANDATORY AND IT IS OBLIGATORY FOR T HE LD. CIT(A) TO PASS A SPEAKING ORDER ON MERIT IN WRITING BY STATING THE P OINTS FOR DETERMINATION, I.T.A. NO.474/COCH/2015 5 THE DECISION THEREON AND THE REASONS FOR SUCH DECIS ION., WHICH IN THE PRESENT CASE HAS NOT BEEN DONE BY THE LD. CIT(A). 8. WE ALSO REPRODUCE RULE 19(1) & (2) OF APPELLA TE TRIBUNAL RULES, 1963 FOR THE SAKE OF CONVENIENCE AS UNDER: 19(1) THE TRIBUNAL SHALL NOTIFY TO THE PARTIES SPE CIFYING THE DATE AND PLACE OF RESPONDENT EITHER BEFORE OR WITH SUCH NOTI CE. (2) THE ISSUE OF THE NOTICE REFERRED TO IN SUB-RUL E(1) SHALL NOT BY ITSELF BE DEEMED TO MEAN THAT THE APPEAL HAS BEEN ADMITTED . 9. BY READING RULE 19(1) & 19(2), IT IS EVIDEN T THAT THE POWER TO ADMIT THE APPEAL AND NOT TO ADMIT THE APPEAL LIES WITH TH E ITAT AND NOT WITH THE LD. CIT(A). THEREFORE, DISMISSING THE APPEAL IN LI MINE AS PER THE DECISION IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD. (SUPR A) IS APPLICABLE TO THE APPEALS DECIDED BY THE ITAT AND NOT BY THE LD. CIT( A). THEREFORE, THE LD. CIT(A), ACCORDING TO US, CANNOT DISMISS THE APPEAL IN LIMINE AND HE HAS TO PASS A SPEAKING ORDER AND DECIDE THE ISSUES ON MERI T. IN THE PRESENT CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DISMISSING THE A PPEAL OF THE ASSESSEE IN LIMINE AND ACCORDINGLY, THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) WHO WILL DECIDE THE ISSUES DE NOVO ON MERIT BUT BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS A LL THE GROUNDS OF THE ASSESSEE ARE ALLOWED. FOR STATISTICAL PURPOSES. I.T.A. NO.474/COCH/2015 6 IN THE RESULT, THE APPEAL OF THE ASSESSEE IN I.T.A . NO. 474/COCH/2015 IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 23-11-2015. SD/- SD/- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 23 RD NOVEMBER, 2015 GJ COPY TO: 1.SHRI P.J. PETER, PEEJAY CONSTRUCTIONS, ALUMCHUVAD U, KOCHI-682 024. 2. THE INCOME TAX OFFICER, WARD-2(3), KOCHI. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T.,COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN