ITO, Kannur V. C.K.Ashalatha, Kannur

ITA 827/COCH/2007

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64720 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-07-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 04-10-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRADUMNA KUMAR SINGH

Judgement Text

1 ITA NOS.813-815/COCH/2007 ITS NOS. 826-829/COCH/2007 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.TA NO.813, 814 & 815/COCH/2007 (ASSESSMENT YEARS 2000-01, 2001-02 & 2002-03) SMT. C.K. ASHALATHA VS ITO, WD.2(1) PARTNEWR IN VICHITHRA COMMERCIAL COMPLEX-A KANNUR KANNUR PAN : ABMPA5951H (APPELLANT) (RESPONDENT) I.TA NO.826 TO 829/COCH/2007 (ASSESSMENT YEARS 2000-01, 2001-02, 2002-03 & 2003-04) ITO, WD.2(1) VS SMT. C.K. ASHALATHA KANNUR KANNUR (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE RESPONDENT BY : SHRI PRADUMNA KUMAR SINGH DATE OF HEARING : 26-07-2012 DATE OF PRONOUNCEMENT : 10-08-2012 O R D E R PER N.R.S. GANESAN (JM) FOR THE ASSESSMENT YEARS 2000-01 TO 2002-03 BOTH ASS ESSEE AND THE REVENUE HAVE FILED THE APPEALS. FOR THE ASSESSMENT YEAR 2003-04 THE REVENUE HAS FILED THE APPEAL. SINCE COMMON ISSUE ARISES FO R CONSIDERATION IN ALL THE 2 ITA NOS.813-815/COCH/2007 ITS NOS. 826-829/COCH/2007 APPEALS, FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. ALL THE SEVEN APPEALS WERE DISPOSED OF BY AN ORD ER DATED 18-03-2009. HOWEVER, THE ASSESSEE FILED MISCELLANEOUS APPLICATI ONS IN M.A. NOS 103 TO 105/COCH/2009. THE TRIBUNAL BY AN ORDER DATED 24-08 -2009 HAS RECALLED THE ORDER OF THIS TRIBUNAL DATED 18-03-2009 AND RESTORED THE APPEALS ON FILE. THE REVENUE HAS ALSO FILED MISCELLANEOUS APPLICATIONS I N M.A. NOS 147 TO 150/COCH/2009 AND THE TRIBUNAL VIDE ORDER DATED 09-0 3-2012 HAS RECALLED THE ORDER IN REVENUES APPEAL AND RESTORED THE APPEALS ON FILE. ACCORDINGLY ALL THE APPEALS OF THE ASSESSEE AND THE REVENUE WERE POSTED FOR HEARING BEFORE THIS BENCH. 3. LET US NOW TAKE THE ASSESSEES APPEALS FOR ASSESS MENT YEARS 2000-01, 2001-02 AND 2002-03 IN ITA NOS. 813, 814 & 815/COCH/2 007. THE ONLY ISSUE ARISES FOR CONSIDERATION IN ALL THE THREE APPEALS O F THE ASSESSEE IS WITH REGARD TO DISALLOWANCE OF INTEREST ON THE LOAN AVAILED FROM M /S ASHOKA HOSPITAL, KANNUR. 4. NO ONE APPEARED FOR THE ASSESSEE IN SPITE OF ISS UE OF NOTICE. IN FACT, THESE APPEALS WERE POSTED FOR HEARING ON VARIOUS OCCASION S. AFTER RECALLING THE ORDER, THE APPEALS WERE POSTED FOR HEARING ON 13-10-2009. 14 -12-2009; 08-02-2010; 04- 05-2010; 05-08-2010; 06-09-2010; 09-11-2010; 03-01-2011; 15-0 3-2011; 16-05- 2011; 08-08-2011; 17-11-2011; 24-01-2012; 14-02-2012; 07-03-2 012; 09-04- 2012; 14-05-2012; 20-06-2012; 04-07-2012; 05-07-2012; 19-07-2 012 AND FINALLY ON 26-07-2012. ON ALL THE HEARING DATES THE ASSESSEE REQUESTED FOR ADJOURNMENTS ONE WAY OR THE OTHER ON THE GROUND THA T THE LD.COUNSEL FOR THE 3 ITA NOS.813-815/COCH/2007 ITS NOS. 826-829/COCH/2007 ASSESSEE ENGAGED IN OTHER COURTS. TWO LONG YEARS T HIS TRIBUNAL ACCOMMODATED THE LD.COUNSEL AND ADJOURNED THE HEARING. HOWEVER, EVEN ON 26-07-2012 NO ONE APPEARED FOR THE ASSESSEE AND THE ASSESSEE SIMPLY S ENT AN APPLICATION THROUGH FAX. THEREFORE, THIS TRIBUNAL FIND THAT THERE IS N O JUSTIFICATION FOR ADJOURNING THE CASE FOR SUCH A LONG PERIOD AND KEEP IT PENDING. AC CORDINGLY THE LD.DR WAS HEARD AND THE APPEALS ARE DISPOSED ON MERIT. 5. SHRI PRADUMNA KUMAR SINGH, THE LD.DR SUBMITTED TH AT THE ASSESSEE APPEARS TO HAVE BORROWED LOAN FROM ASHOKA HOSPITAL, KANNUR. THE ASSESSEE APPEARS TO HAVE FILED A WRIT PETITION BEFORE THE HI GH COURT. THE COMMISSIONER OF INCOME-TAX(A) DIRECTED THE ASSESSING OFFICER TO CALL FOR MUTUALLY AGREED UPON REPAYMENT SCHEDULE FROM BOTH PARTIES AS DIRECTED BY THE HIGH COURT AND THEREAFTER ALLOW 12% INTEREST PER ANNUM WHICH IS ST IPULATED IN THE COURTS ORDER. THE ORDER OF THE HIGH COURT IS NOT AVAILABLE ON THE FILE OF THIS TRIBUNAL. THEREFORE, THIS TRIBUNAL HAS NO OCCASION TO GO THROUGH THE ORD ER OF THE HIGH COURT. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE ASSESSING OFFICER HAS TO CONSIDER THE ORDER OF THE HIGH COURT AND THEREAFTER PASS NEC ESSARY ORDER IN ACCORDANCE WITH THE DIRECTION OF THE HIGH COURT. ACCORDINGLY THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE DIRECTION OF TH E HIGH COURT AND THEREAFTER DECIDE THE SAME AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6. COMING TO THE DEPARTMENTAL APPEALS, IN ALL THE A PPEALS FILED BY THE DEPARTMENT THE ISSUE IS WITH REGARD TO THE INTEREST ON THE BORROWED CAPITAL FOR CONSTRUCTION. SINCE THE HIGH COURT HAS ALREADY PAS SED SOME ORDER, THE COPY OF 4 ITA NOS.813-815/COCH/2007 ITS NOS. 826-829/COCH/2007 WHICH IS NOT AVAILABLE ON THE FILE OF THIS TRIBUNAL , WE ARE UNABLE TO EXPRESS ANY OPINION ON THE MERIT OF THESE APPEALS. THIS TRIBUN AL CANNOT GO BEYOND THE DIRECTION OF THE HIGH COURT. THE HIGH COURT DIRECT ION HAS TO BE COMPLIED WITH NOT ONLY BY THIS TRIBUNAL BUT ALSO BY THE LOWER AUTHORI TIES. SINCE THE ASSESSEES APPEALS ARE REMANDED BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR RECONSIDERATION IN THE LIGHT OF THE HIGH COURT DIRECTION, THE GROUN D RAISED IN THE DEPARTMENTAL APPEALS ALSO NEEDS TO BE RECONSIDERED IN THE LIGHT OF THE DIRECTION OF THE HIGH COURT. ACCORDINGLY THE ORDERS OF THE LOWER AUTHORI TY ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE DIRECTION OF THE HIGH COURT AND THEREAFTER DECI DE THE SAME AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE IN ACCORDANC E WITH LAW. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A ND THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH AUGUST, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 10 TH AUGUST, 2012 PK/- COPY TO: 1. THE APPELLANTS 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH