Sri.S.Mohanan Nair, Trivandrum V. The ACIT(Inv), Tivandrum

ITA 549/COCH/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5748 (ITAT-COCHIN)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-09-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: T M SREEDHARAN
• Section: 142(1); 153A; 201

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 . 545 TO 549/ C OCH/ 201 8 ASSESSMENT YEAR S : 2002 - 03 & 2005 - 06 TO 2008 - 09 SHRI S. MOHANAN NAIR, MOHANAM, TC 55/294, KAIMANAM, TRIVANDRUM. [PAN:AJOPP 2959E] VS. THE ASSISTANT DIRECTOR OF INCOME - TAX (INV.), TRIVANDRUM. ( ASSESSEE - APPELLANT) ( REVENU E - RESPONDENT) ASSESSEE BY S HRI T.M. SREEDHARAN, SR. ADV. REVENUE BY SMT. A.S. BINDHU, SR. DR D ATE OF HEARING 2 4 /09/2019 DATE OF PRONOUNCEMENT 01 ST /10/ /2019 / O R D E R PER GEORGE GEORGE K. J M : TH ESE APPEAL S FILED AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST VARIOUS ORDERS O F THE CIT(A) , TRIVANDRUM. THE RELEVANT ASSESSMENT YEARS ARE 2002 - 03 , 2005 - 06 TO 2008 - 09. THE ORDERS OF THE CIT(A) ARISE OUT OF THE ASSESSMENTS PASSED U/S. 153 A R.W.S. 144 OF THE I.T. ACT FOR THE ASSESSMENT YEARS 2002 - 03, 2005 - 06 TO 2007 - 08. WHEREAS FOR THE ASSESSMENT YEAR 2008 - 09, THE ASSESSEMENT ORDER WAS PASSED U/S. 144 OF THE I.T. ACT. 2. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS: I.T.A. NO . 545 TO 549 /COCH/201 8 2 THE ASSESSEE IS AN I NDIVIDUAL. THERE WAS SEARCH IN THE BUSINESS PREMISES OF I) M/S. PARTHAS INFOPARK LTD., TRIVANDRUM, II) THE ASSESSEE AND III) TWO OTHERS. DURING T HE COURSE OF SEARCH , DOCUMENTS WERE FOUND WHICH DISCLOSED CERTAIN PAYMENTS MADE BY M/S. PARTHAS INFOPARK LTD. TO THE ASSESSEE. IN PURSUANT TO THE SEARCH, NOTICE U/S. 153A OF THE I.T. ACT WAS ISSUED TO THE ASSESSEE. IN THE ABSENCE OF ANY RETURN BEING FILED, IN RESPONSE TO THE NOTICE ISSUED U/S. 142(1) OF THE I.T. ACT, ASSESSMENTS WERE COMPLETED UNDER SECTION 144 OF THE I.T. ACT FOR ASSESSMENT YEARS 2002 - 0 3 , 2005 - 06 TO 2008 - 09. 3. AGGRIEVED BY THE ASSESSMENT ORDERS PASSED FOR THE ASSESSMENT YEARS 2002 - 03 , 2005 - 06 TO 2008 - 09, APPEALS WERE FILED TO THE FIRST APPELLATE AUTHORITY. BEFORE THE FIRST APPELLATE AUTHORIT Y, IT WAS SUBMITTED BY THE ASSESSEE THAT HE COULD NOT APPEAR DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND FILE NECESSARY EVIDENCE FOR DELETING THE ADDITIONS MADE IN THE ASSESSMENT ORDERS. IT WAS STATED THAT THE ASSESSEE HAD FALLEN SICK DURING THE C OURSE OF ASSESSMENT PROCEEDINGS . THE ASSESSEE HAD ALSO PRODUCED MEDICAL CERTIFICATE STATING THAT HE WAS ILL DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CIT(A) CALLED FOR REPORT FROM THE ASSESSING OFFICER ON THE WRITTEN SUBMISSIONS FILED BY THE ASSESSE E. THE ASSESSING OFFICER AND THE RANGE HEAD SUBMITTED THEIR REPORTS. IN THE REPORTS OF THE ASSESSING OFFICER AND THE RANGE HEAD, IT WAS STATED THAT THE ISSUE MAY BE DECIDED ON MERITS. ACCORDINGLY, THE CIT(A) DISPOSED OF THE APPEALS OF THE ASSESSEE . THE C IT(A) PARTLY ALLOWED THE APPEALS FILED BY THE ASSESSEE. I.T.A. NO . 545 TO 549 /COCH/201 8 3 4. THE ASSESSEE BEING AGGRIEVED BY THE ORDERS OF THE CIT(A), HAS FILED THESE APPEALS BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT PRODUCE THE DOCUME NTARY EVIDENCE TO SHOW THAT THE ADDITIONS ARE NOT WARRANTED IN THESE CASES AS HE FELL ILL DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS SUBMITTED THAT AS A LAST CHANCE, ONE MORE OPPORTUNITY MAY BE GRANTED TO PRODUCE THE NECESSARY DOCUMENTARY PROOF T O EXPLAIN THE SOURCE OF INVESTMENTS /DEPOSITS AND THE MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR CONSIDERATION OF THE ISSUES RAISED IN THESE APPEALS AFRESH. 5 . THE LD. DR RELIED ON THE ORDERS PASSED BY THE LOWER AUTHORITIES. 6 . WE HAVE HEARD T HE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS CLAIMED BY THE ASSESSEE THAT HE HAD FALLEN SICK DURING THE COURSE OF ASSESSMENT PROCEEDINGS . THE REASONS ADDUCED BY THE ASSESSEE FOR NOT RESPONDING TO THE NOTICE ISSUED BY THE ASSESSING OFFICER IS REPROD UCED BELOW: IN AUGUST 2005, I GOT INFECTION OF CHICKUNGUNIYA. ON GETTING ALMOST RELIEF FROM THE INFECTION, I AM AFFECTED WITH SEVERE BODY PAIN, PAIN IN MAJOR AND MINOR JOINTS, POLY ATHIRITIS AND KIDNEY DISEASES. FURTHER ON 10/09/2007, I AM ADMITTED TO G OVERNMENT AYURVEDA HOSPITAL, POOJAPURA, TRIVANDRUM AND DURING THE TIME OF SURVEY BY THE INCOME TAX DEPARTMENT OFFICIALS, I WAS ADMITTED IN KERALA GOVERNMENT AYURVEDA RESEARCH CENTRE, POOJAPURA. THAT SEVERE TREATMENT EXTENDED 32 MONTHS CONTINUOUSLY BEDRIDDE N ETC. S TILL I AM IN MEDICAL TREATMENTS WITH VARIOUS SPECIALISTS. DURING THE TIME THE ASSESSING AUTHORITY ISSUED SEVERAL NOTICES BUT I WAS UNABLE TO ATTEND ON THE DATES AND THE CONSULTANTS WHO WERE AUTHORIZED WERE ALSO NOT FURNISHED THE REPLY IN DUE DATES . IT IS OCCURRED ONLY BECAUSE I WAS BEDRIDDEN, BY WHICH THE DOCUMENTS RELATED WERE NOT I.T.A. NO . 545 TO 549 /COCH/201 8 4 PROPERLY ARRANGED OR MADE AVAILABLE. THE COPIES OF MEDICAL CERTIFICATES/ADMISSION CARD/RELATED TREATMENT RECORDS ARE ENCLOSED HEREWITH 6.1 THE LD. AR SUBMITTED DUR ING THE COURSE OF HEARING THAT HE HAD DOCUMENTARY PROOF TO EXPLAIN THE SOURCE FOR INVESTMENTS/DEPOSITS AND THEREFORE, REQUESTED TO RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION. IN THE INTERE ST OF JUSTICE AND EQUITY, THE MATTER NEEDS TO BE CONSIDERED AFRESH BY THE ASSESSING OFFICER SINCE THE ASSESSEE COULD NOT PROPERLY REPRESENT HIS CASE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. F OR THE ABOVE SAID PURPOSE, WE RESTORE THE APPEALS FILED BY THE ASSESSEE TO THE ASSESSING OFFICER FOR DE NOVO CONSIDERATION. THE ASSESSEE SHALL CO - OPERATE WITH THE DEPARTMENT AND ASSESSING OFFICER SHALL PASS AN ORDER EXPEDITIOUSLY AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6.2 WE MAKE IT CLEAR THAT IN THE ABSENCE OF DEPARTMENT S APPEAL BEFORE THE TRIBUNAL, THE INCOME TO BE DETERMINED BY THE ASSESSING OFFICER SUBSEQUENT TO THE REMAND MADE BY US SHALL NOT EXCEED THE INCOME ALREADY DETERMINED IN GIVING EFFECT TO THE IMPUGNED ORDERS OF THE FIRST APPELLATE AUTHORITY FOR THE ASSESSMEN T YEARS 2002 - 03 , 2005 - 06 TO 2008 - 09. IT IS ORDERED ACCORDINGLY. I.T.A. NO . 545 TO 549 /COCH/201 8 5 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST OCTOBER, 2019 SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: KOCHI DATED: 1 ST OCTOBER, 2019 GJ COPY TO: 1 . SHRI S. MOHANAN NAIR, MOHANAM, TC 55/294, KAIMANAM, TRIVANDRUM. 2. THE ASSISTANT DIREC TOR OF INCOME - TAX (INV.), TRIVANDRUM. 3. THE COMMISSIONER OF INCOME - TAX (AP P EALS) , TRIVANDRUM. 4. THE PR. COMMISSIONER OF INCOME - TAX, TRIVANDRUM . 5. D. R., I.T.A.T., COCHIN BENCH, COCHIN. 6 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN