Appeal details
Counselvise Citation
[2016] 121 COUNSELVISE.COM (IT) 2654 (ITAT-COCHIN)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 2 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
11-03-2016
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
DB
Next Hearing Date
10-03-2016
Assessment Year
2004-2005
Appeal Filed On
26-12-2014
Judgement Text
ITA NO S 593 & 526/C/2014 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S . 593/COCH/2014 (AY 2004 - 05) & ITA NO. 526/COCH/2014 ( AY 2005 - 06) M/S PLANTATION CORPORATION OF KERALA MUTTAMBALAM KOTTAYAM VS THE ASST COM MR OF INCOME TAX CIRCLE 1 KOTTAYAM ( APPELLANT) (RESPONDENT) PAN NO. AAACT7696H ASSESSEE BY SH K I JOHN REVENUE BY SH K P GOPAKUMAR, SR DR DATE OF HEARING 10 TH MARCH 2016 DATE OF PRONOUNCEMENT 11 TH , MARCH 2016 OR D ER PER BENCH : THESE TWO A PPEALS , AT THE INSTANCE OF THE ASSESSEE , ARE DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A), BOTH DATED 22 ND SEPT 2014. THE RELEVANT ASSESSMENT YEARS ARE 20 0 4 - 05 AND 2005 - 06. 2 WE SHALL ADJUDICATE FIRST THE APPEAL FOR THE A SSESSMENT YEAR 2004 - 05. 593/COC H/2014 (ASST YEAR 2004 - 05) 3 THE ASSESSEE HAS RAISED NINE GROUNDS OF APPEAL AND ALSO FILED THREE ADDITIONAL GROUNDS. AT THE TIME OF HEARING , THE LD AR SUBMITTED THAT HE IS NOT PRESSING ALL THE NINE GROUNDS OF APPEAL, HENCE, THESE NINE GROUNDS ARE DISMISS ED AS NOT PRESSED. THE SURVIVING THREE ADDITIONAL GROUNDS READ AS UNDER: ITA NO S 593 & 526/C/2014 2 I ) THE CIT(A) HAS ERRED IN HOLDING THAT THE APPEAL IS NOT MAINTAINABLE SINCE THE ORDER OF THE AO HAS ALREADY BEEN REVISED BY THE ADMINISTRATIVE COMMISSIONER U/S 264 OF THE ACT AND NO FUR THER APPEAL LIES WITH CIT(A) AGAINST THIS ORDER UNDER THE PROVISIONS OF SECTION 264(4) OF THE ACT. II ) THE CIT(A) OUGHT TO HAVE FOUND THAT THE REVISION PETITION FILED WAS NOT AGAINST THE ASST ORDER DATED 30.12.2011 BUT ONLY AGAINST THE PRELIMINARY ORDER U/S 14 7 OF THE AT DATED 9.6.2011 WHICH IS SOLELY AN ORDER ON OBJECTIONS FILED TO THE REASON RECORDED AND NOT AN ASSESSMENT ORDER AND NO APPEAL LIES AGAINST THE ORDER ON OBJECTIONS. III ) THE CIT(A) OUGHT TO HAVE FOUND THAT THE APPEAL FILED IS ONLY AGAINST THE ASSESSME NT ORDER DATED 30.12.2011 U/S143(3) R.W.S 147 AND NOT AGAINST THE PRELIMINARY ORDER U/S 147 DATED 9.6.2011. 3.1 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT CONSIDERING THE ISSUE O N MERITS , FOR THE REASONS THAT THE ASSESSEE HAD PREFERRED REVISION PETITION U/S 264 OF THE ACT AND THE SAME WAS ENTERTAINED BY THE CIT VIDE ORDER DATED 25.3.2015. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD PREFERRED REVISION PETITION U/S 264 OF THE ACT AGAINST THE PRELIMINARY ORDER OF THE AO , JUSTIFYING THE REOPENING OF THE ASSESSMENT BY ISSUANCE OF NOTICE U/S 148 OF THE ACT ( PRELIMINARY ORDER DATED 9.6.2011 ) . IT WAS FURTHER SUBMITTED BY THE LD COUNSEL TH AT THE ASSESSEE HAD FILED GROUNDS OF APPEAL BEFORE THE CIT(A) CHALLENGING THE COMPUTATION OF BO OK PROFITS U/S 115JB OF THE ACT AND NON - CONSIDERATION OF THE SAME BY THE CIT(A) , IS WRONG AND THE MATTER NEEDS TO BE REMANDED BACK TO THE CIT(A) FOR THE CONSIDE RATION OF ISSUE ON MERITS. THE LD DR PRESENT WAS DULY HEARD. ITA NO S 593 & 526/C/2014 3 3.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE INSTANCE CASE, NOTICE U/S 148 DATED 30.3.2011 WAS ISSUED BY THE AO FOR REOPENING THE ASSESSMENT. PURSUANT TO THE RECEIPT OF THE NOTICE ISSUED U/S 148, RETURN OF INCOME WAS FILED ON 28.4.2011 WITH A SPECIFIC REQUEST TO FURNISH REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THE ASSESSEE PLACING RELIANCE ON THE HONBLE APEX COURT JUDGMENT IN THE CASE OF GKN DRI VESHAFTS (I) L T D VS I TO & OR., REPORTED IN 259 ITR 19 , FILED OBJECTIONS BEFORE THE AO WITH REGARD TO THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. THE AO DISPOSED OF THE OBJECT ION FILED BY THE ASSESSEE BY WAY OF PRELIMINARY ORDER DATED 9.6.2011. THE AO JUSTIFIED HIS ACTION FOR REOPENING THE ASSESSMENT. PURSUANT TO PRELIMINARY ORDER OF THE AO DATED 9.6.2011, THE ASSESSEE FILED REVISION PETITION U/S 264 OF THE ACT DATED 29.6.2011 CHALLENGING THE PRELIMINARY ORDER PASSED BY THE AO JUSTIFYING THE REOPENIN G OF THE ASSESSMENT. MUCH AFTER THE REVISION PETITION FILED U/S 264, ASSESSMENT ORDER WAS PASSED U/S 143(3) R.W.S 147 (ORDER DATED 30.12.2011). THEREFORE, IT IS VERY CLEAR AND EVIDENT THAT THE REVISION PETITION HAS BEEN FILED AGAINST THE PRELIMINARY ORDE R PASSED BY THE AO (ORDER DATED 9.6.2011) REJECTING THE ASSESSEES OBJECTION IN REOPENING THE ASSESSMENT. THE FURTHER QUESTION IS TO BE EXAMINE D IS WHETHER GROUNDS HAD BEEN RAISED BEFORE THE CIT(A) , CHALLENGING THE COMPUTATION OF BOOK PROFITS U/S 115JB OF THE ACT. ON PERUSAL OF THE GROUNDS OF APPEAL FILED BEF OR E THE C IT (A), WE FIND IN GROUND NO.6, THE ASSESSEE HAS SPECIFICALLY CHALLENGED THE COMPUTATION OF BOOK PROFITS U/S 115JB . NECESSARILY, THE CIT(A) HAS TO CONSIDER THE ISSUE OF COMPUTATION OF BOOK P ROFITS ITA NO S 593 & 526/C/2014 4 U/S 115JB OF THE ACT, WHICH WA S NOT THE SUBJECT MATTER OF REVISION PETITION U/S 264 OF THE ACT. HENCE , WE RESTORE THE MATTER TO THE FILE OF THE CIT(A) FOR THE CONSIDERATION OF THE ISSUE ON MERITS; NAMELY WHETHER THE COMPUTATION OF BOOK PROFITS U/S 1 15JB OF THE ACT IS IN ACCORDANCE WITH LAW. IT IS ORDERED ACCORDINGLY. 3.3 IN THE RESULT, THE APPEAL FOR THE AY 2004 - 05 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 526/COCH/2014 (AY 2006 - 06) 4 THE CIT(A) HAS DISPOSED OF THE ASSESSEES APPEAL BY OBSERVING AS UNDER: 6. AS IT IS AMPLY CLEAR FROM THE REMAND REPORT THAT THE AO HAS FOLLOWED A CONSISTENT VIEW FOR THE COMPUTATION OF BOOK PROFIT ON WHICH THE ASSESSEE HAS RAISED QUESTION REPEATEDLY. THE SAME ISSUES ALSO HAVE BEEN EXAMINED BY THE LD ADMINISTRATIVE CIT AND FOUND NO MISTAKE IN THE AOS ORDERS FOR THE AY 2004 - 05. SINCE THE AO HAS DISCUSSED THE ISSUE ELABORATELY BOTH ON THE ACCOUNT OF FACT, AS WELL AS ALSO HAS ANALYZED THE ISUSES IN FOLLOW UP DIRECTION OF THE ITAT, COCHIN BENCH, I DO NOT FIND ANY INFIRM ITY IN HIS ORDER. ACCORDINGLY, THE APPEAL ON VARIOUS GROUNDS HAS GOT NO MERITS AND THE SAME IS DISMISSED. 4.1 IT WAS SUBMITTED BY THE LD COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FILED OBJECTION TO THE REMAND REPORT OF THE AO AND T HE SAID OBJECTION HAS NOT BEEN TAKEN NOTE OF F BY THE CIT(A) WHILE DISPOSING THE APPEAL BEFORE HIM. FURTHER, IT WAS SUBMITTED THAT THE CIT(A) HAD MERELY FOLLOWED THE ADMINISTRATIVE COMMISSIONER ORDER U/S 264 OF THE ACT FOR AY 2004 - 05 . IT WAS SUBMNITTED THAT THE ITA NO S 593 & 526/C/2014 5 ISSUE OF C OMPUTATION OF BOOK PROFITS U/S 115JB OF THE ACT WAS NOT A SUBJECT MATTER FOR CONSIDERATION U/S 264 OF THE ACT. THE LD DR PRESENT WAS DULY HEARD. 4.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSMENT ORDER FOR THE AY 20 05 - 06 IS PURSUANT TO THE ORDER OF THE ITAT DIRECTION TO COMPUTE BOOK PROFIT U/S 115JB OF THE ACT IN ACCORDANCE WITH LAW. THE CIT(A) , WHILE DISPOSING THE APPEAL OF THE ASSESSEE , HAS REFERRED TO THE CIT ORDER U/S 2 64 OF THE ACT IN RESPECT TO AY 2004 - 05 . FURTHER, WE NOTICE THAT THE ASSESSEE HAD FILED OBJECTION TO THE REMAND REPORT FILED BY THE AO. THE REMAND REPORT OF THE AO HAS BEEN REPRODUCED BY THE CIT(A) AT PARA 2 OF THE IMPUGNED ORDER. THERE IS NO REFERENCE TO THE ASSESSEES OBJECTION TO THE REMAND REPORT FILED BY THE AO (OBJECTION TO REMAND REPORT IS PLACED ON RECORD). THEREFORE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND EQUITY THE MATTER NEEDS TO BE CONSIDERED AFRESH BY THE CIT(A) . A CCORDINGLY, WE REMIT THE MATTER TO THE CIT(A) FOR DE - NOVO CONSIDERATION. THE CIT(A) SHALL DISPOSE OFF THE MATTER EXPEDITIOUSLY AS POSSIBLE IN ACCORDANCE WITH LAW, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 4.3 IN THE RESULT, THE APPEAL FOR THE AY 2005 - 06 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO S 593 & 526/C/2014 6 5 TO SUM - UP, BOTH THE APPEALS FILED BY THE ASSESSEE ; I.E. FOR THE AYS 2004 - 05 AND 2005 - 06 ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF MARCH 2016 . SD/ - SD/ - ( B P JAIN ) ( GEORG E GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 11 TH , MARCH 2016 RAJ* COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN
