Raju Sebastian, Kottayam V. The DCIT, Kottayam

ITA 89/COCH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77437 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 06-03-2014
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: K I JOHN
• Keywords: Reopening of assessment; Depreciation; Opportunity of being heard; Retrospective amendment; Procedural lapse; Assessment record; Reassessment proceedings
• Section: 143(3); 147; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 89/COCH/2014 ASSESSMENT YEAR : 2007-08 SHRI RAJU SEBASTIAN, POOVELIL HOUSE, KIZHAPARAYARU P.O., POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM. [PAN: AIGPR 1170A] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDEN T) S.P. NO. 17/COCH/2014 (ARSG. OUT OF I.T.A. NO. 89/COCH/2014) ASSESSMENT YEAR : 2007-08 SHRI RAJU SEBASTIAN, POOVELIL HOUSE, KIZHAPARAYARU P.O., POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM. [PAN: AIGPR 1170A] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOTTAYAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDEN T) ASSESSEE BY SHRI K.I. JOHN, CA REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 29/04/2014 DATE OF PRONOUNCEMENT 09/05/2014 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 09- 01-2014 PASSED BY THE LD. CIT(A)-IV, KOCHI AND IT R ELATES TO THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS ALSO MOVED A STAY PETITI ON SEEKING STAY OF COLLECTION I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 2 OF OUTSTANDING DEMAND. HOWEVER, SINCE THE APPEAL I S ALSO POSTED FOR HEARING, WE HEARD THE APPEAL FILED BY THE ASSESSEE. 2. THOUGH THE ASSESSEE HAS URGED MANY GROUNDS, THE LD. COUNSEL FOR THE ASSESSEE FIRST ARGUED ON A LEGAL ISSUE, VIZ., THE I MPUGNED ASSESSMENT ORDER CANNOT SURVIVE IN ANY MANNER IN VIEW OF THE SECOND RE-OPENING NOTICE ISSUED SUBSEQUENTLY ON 15-11-2011. HENCE, WE PROCEED TO A DDRESS THIS LEGAL ISSUE FIRST. 3. THE FACTS RELATING TO THE SAID LEGAL ISSUE ARE S TATED IN BRIEF. THE IMPUGNED ASSESSMENT HAS BEEN PASSED BY THE ASSESSING OFFICER ON 31-12-2010 UNDER SECTION 147 R.W.S. 143(3) OF THE ACT. WHILE THE AP PEAL FILED AGAINST THE ABOVE SAID ASSESSMENT ORDER WAS PENDING BEFORE THE LD. CI T(A), THE ASSESSING OFFICER ISSUED ANOTHER NOTICE OF RE-OPENING U/S. 148 OF THE ACT ON 15-11-2011. 4. IN VIEW OF THE SECOND RE-OPENING NOTICE, THE ASS ESSEE IS CONTENDING BEFORE US THAT THE IMPUGNED ASSESSMENT ORDER WILL N OT SURVIVE IN THE EYES OF LAW. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSES SEE HAS PLACED RELIANCE ON THE DECISION RENDERED BY THE HONBLE JURISDICTIONAL HIG H COURT OF KERALA IN THE CASE OF CIT VS. K. KESAVA REDDIAR (178 ITR 457) AND ALSO THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF V. JAGANMO HAN RAO AND OTHERS VS. CIT (75 ITR 373). THE LD. COUNSEL SUBMITTED THAT THE H ONBLE JURISDICTIONAL HIGH COURT, IN THE CASE OF K. KESAVA REDDIAR (SUPRA), HA S OBSERVED THAT THE EFFECT OF I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 3 RE-OPENING OF AN ASSESSMENT IS TO VACATE OR SET ASI DE THE INITIAL ORDER OF ASSESSMENT AND SUBSTITUTE IN ITS PLACE THE ORDER MA DE IN REASSESSMENT PROCEEDINGS. IN THIS REGARD, THE LD. COUNSEL FOR T HE ASSESSEE INVITED OUR ATTENTION TO THE FOLLOWING OBSERVATIONS MADE BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE ABOVE CITED CASE: THE TRIBUNAL TOOK THE VIEW THAT THE ORIGINAL ORDER OF ASSESSMENT HAVING BEEN SUPERSEDED OR NULLIFIED, THERE WAS NOTHING TO BE CONSIDERED IN THE APPEAL FILED BY THE REVENUE FROM THE APPELLATE ORDE R OF THE COMMISSIONER OF INCOME-TAX. IN EFFECT, THE TRIBUNA L TOOK THE VIEW THAT THE ORIGINAL ASSESSMENT ORDER PASSED BY THE INCOME- TAX OFFICER, DATED MARCH 7, 1978 WAS SET ASIDE AS IT WAS NO LONGER IN EXISTENCE AND SO IN THE APPEAL FILED BY THE REVENUE, THERE WAS NO QUEST ION OF RESTORING THE SAID ORDER. IT IS SETTLED LAW THAT THE REVISED ORDER OR THE ORD ER PASSED IN THE REASSESSMENT PROCEEDINGS DATED OCTOBER 31, 1980, RE CORDING THAT THE REASSESSMENT IS CLOSED AS N.A. (NOT ASSESSED OR N OT ASSESSABLE OR NIL ASSESSMENT), IS A FINAL ORDER, LAWFULLY TERMINATING THE ASSESSMENT PROCEEDINGS. THE LD A.R ALSO PLACED RELIANCE ON THE FOLLOWING OB SERVATIONS MADE BY HONBLE SUPREME COURT IN THE CASE OF KUNDAL LAL SRIKISHAN V S. COMMISSIONER OF SALES TAX, U.P AND ANOTHER (1987)(65 SALES TAX CASES 62):- .. ONCE THE REASSESSMENT NOTICE WAS ISSUED UNDER SECTION 21 OF THE U.P SALES TAX ACT THE ORIGINAL ORDER OF ASSESSMENT GOT REOPENED AND THEREAFTER ANY ORDER UNDER SECTION 21 ALONE WOULD B E THE ORDER OF ASSESSMENT. THE ONLY ORDER WHICH THE ASSESSING AUT HORITY WAS REQUIRED TO MAKE UNDER SECTION 21 AFTER A NOTICE WAS ISSUED TO THE DEALER UNDER THAT SECTION WAS AN ORDER OF ASSESSMENT OR REASSESS MENT. .. IN DEPUTY COMMISSIONER OF COMMERCIAL TAXES V. H .R. SRI RAMULU (1977)(39 STC 177)(SC); (1977) 2 SCR 593 THIS COURT HAS CLEARLY LAID DOWN THAT WHEN ONCE A NOTICE IS ISSUED FOR PURPOSES OF MAKING REASSESSMENT THE ASSESSMENT PROCEEDINGS BECOME REOP ENED AND THE INITIAL ORDER OF ASSESSMENT CEASES TO BE OPERATIVE. THIS COURT HAS FURTHER HELD THAT THE EFFECT OF THE REOPENING OF ASSESSMENT IS TO VACATE OR SET I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 4 ASIDE THE INITIAL ORDER OF ASSESSMENT AND TO SUBSTI TUTE IN ITS PLACE THE ORDER MADE ON REASSESSMENT AND THAT THE RESULT OF R EOPENING OF THE ASSESSMENT IS THAT A FRESH ORDER FOR REASSESSMENT W OULD HAVE TO BE MADE IN RESPECT OF ALL MATTERS INCLUDING THOSE MATTERS I N RESPECT OF WHICH THERE IS NO ALLEGATION OF THE TURNOVER ESCAPING ASSESSMEN T. THE LD A.R FURTHER PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF V. JAGANMOHAN RAO AND OTHERS V . CIT (1970)(75 ITR 373), WHEREIN THE HONBLE APEX COURT HAS OBSERVED AS UNDE R:- THEREFORE, ONCE ASSESSMENT IS RE-OPENED BY ISSUI NG NOTICE UNDER SUB- SECTION (2) OF SECTION 22 THE PREVIOUS UNDER ASSESS MENT IS SET ASIDE AND THE WHOLE ASSESSMENT PROCEEDING START AFRESH. ACCORDINGLY, THE LD A.R CONTENDED THAT THE IMPUGNED ASSESSMENT ORDER IS SET ASIDE IN VIEW OF THE ISSUING OF ANOTHER NOTICE OF R EOPENING OF ASSESSMENT SUBSEQUENTLY ON 15.11.2011. ACCORDINGLY HE PRAYED THAT THE IMPUGNED ASSESSMENT ORDER SHOULD BE DECLARED AS ANNULLED. 5. WHEN A SPECIFIC QUERY WAS PUT TO LD A.R, AS TO WHETHER THE ASSESSING OFFICER HAS PASSED ANY ASSESSMENT ORDER AGAINST THE NOTICE OF RE-OPENING ISSUED ON 15.11.2011, THE LD A.R SUBMITTED THAT THE ASSESS ING OFFICER HAS NOT DONE ANYTHING THEREAFTER. HENCE, THE LD D.R WAS ASKED T O EXPLAIN THE STATUS OF THE NOTICE ISSUED U/S 148 OF THE ACT ON 15.11.2011. TH E LD D.R, BY REFERRING TO THE ASSESSMENT RECORD, SUBMITTED THAT THE ASSESSING OFF ICER HAS WITHDRAWN THE NOTICE DATED 15.11.2011 ISSUED U/S 148 OF THE ACT A ND HENCE THERE WAS NO NECESSITY FOR HIM TO PASS ANY ASSESSMENT ORDER. 6. THUS, WE NOTICE THAT THE ASSESSING OFFICER H AS WITHDRAWN THE NOTICE OF REOPENING ISSUED U/S 148 OF THE ACT ON 15.11.2011. HENCE THE ASSESSING OFFICER I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 5 DID NOT PASS ANY ASSESSMENT ORDER AGAINST THE SAID NOTICE. IN THE ABSENCE OF ANY SUBSEQUENT ORDER OF ASSESSMENT, I.E., SUBSEQUEN T TO THE IMPUGNED ASSESSMENT ORDER (ORDER DATED 31.12.2010), THE QUES TION WHETHER THE IMPUGNED ASSESSMENT WOULD BE SET ASIDE OR WOULD GET VACATED BECOMES A HYPOTHETICAL QUESTION. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE CONSTRAINED TO STATE THAT THE LEGAL ISSUE CITED ABOVE CANNOT BE URGED IN THE INSTANT CASE. ACCORDINGLY WE REJECT THE GROUND RELATING THERETO. 7. THE LD A.R FURTHER CONTENDED THAT THE ASSESS ING OFFICER SHOULD NOT HAVE WITHDRAWN THE NOTICE DATED 15.11.2011 ISSUED BY HIM , I.E., ACCORDING TO LD A.R, THE ASSESSING OFFICER SHOULD HAVE PASSED THE REASSE SSMENT ORDER. HOWEVER, THE ASSESSEE COULD NOT FURNISH ANY LEGAL AUTHORITY FOR THIS PROPOSITION. THERE SHOULD NOT BE ANY DOUBT THAT A STATUTORY AUTHORITY, WHO IS EMPOWERED TO INITIATE A PROCEEDING, HAS GOT AN INHERENT POWER TO WITHDRAW T HE SAID PROCEEDINGS ALREADY INITIATED BY HIM. HENCE, WE DO NOT FIND ANY MERIT IN THE SAID CONTENTIONS OF LD A.R. 8. HOWEVER, FOR ACADEMIC INTEREST, WE SHALL EXAM INE WHETHER THE ABOVE SAID LEGAL CLAIM, I.E., WHETHER THE EARLIER ASSESSMENT O RDER WOULD BE SET ASIDE OR WOULD GET VACATED ON PASSING OF SUBSEQUENT REASSESS MENT ORDER. THE PROVISIONS OF SECTION 147 OF THE ACT DEAL WITH THE ASSESSMENT OF INCOME ESCAPING ASSESSMENT. THE SAID SECTION READS AS UNDER:- I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 6 147. IF THE ASSESSING OFFICER HAS REASON TO BELI EVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 1 53, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SU BSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, OR RE COMPUTE THE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS T HE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED. A CAREFUL PERUSAL OF THE PROVISIONS OF SEC. 147 OF THE ACT WOULD SHOW THAT THE ASSESSING OFFICER IS EMPOWERED ONLY TO ASSESS OR RE ASSESS THE INCOME WHICH HAS ESCAPED ASSESSMENT U/S 147 OF THE ACT. THE QUESTIO N WHETHER THE ASSESSING OFFICER OR THE ASSESSEE IS ENTITLED TO DISTURB THE ISSUES WHICH STAND ALREADY COMPLETED IN THE EARLIER ASSESSMENT ORDER OR REASSE SSMENT ORDER WAS CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGI NEERING WORKS P LTD (1992)(198 ITR 297). 9. THE SCOPE OF PROVISIONS OF SEC. 147 OF THE A CT WAS CONSIDERED IN DETAIL BY THE HONBLE APEX COURT IN THE CASE OF SUN ENGINEERI NG WORKS P LTD (1992)(198 ITR 297), WHEREIN THE DECISION RENDERED BY THE HON BLE APEX COURT IN THE CASE OF JAGANMOHAN RAO AND OTHERS (SUPRA) WAS ALSO TAKEN INTO ACCOUNT. THE HONBLE SUPREME COURT HAS CONSIDERED BOTH THE ABOVE SAID DECISIONS IN ITS SUBSEQUENT DECISION RENDERED IN THE CASE OF ALAGEND RAN FINANCE LTD (293 ITR 1) WE FEEL IT PERTINENT TO EXTRACT HERE RELEVANT OBSER VATIONS MADE BY HONBLE SUPREME COURT IN THE CASE OF ALAGENDRAN FINANCE LTD (SUPRA):- 9. WE MAY AT THIS JUNCTURE ALSO NOTICE THE DECISI ON OF THIS COURT IN HIND WIRE INDUSTRIES LTD (SUPRA) WHEREIN THE DECISION OF THIS COURT IN V. I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 7 JAGANMOHAN RAO V. CIT AND CEPT [75 ITR 373] INTERPRE TING THE PROVISIONS OF SECTION 34 OF THE ACT WAS REPRODUCED WHICH READS AS UNDER: 'SECTION 34 IN TERMS STATES THAT ONCE THE INCOME TA X OFFICER DECIDES TO REOPEN THE ASSESSMENT, HE COULD DO SO WI THIN THE PERIOD PRESCRIBED BY SERVING ON THE PERSON LIABLE TO PAY T AX A NOTICE CONTAINING ALL OR ANY OF THE REQUIREMENTS WHICH MAY BE INCLUDED IN A NOTICE UNDER SECTION 22(2) AND MAY PROCEED TO ASS ESS OR REASSESS SUCH INCOME, PROFITS OR GAINS. IT IS, THER EFORE, MANIFEST THAT ONCE ASSESSMENT IS REOPENED BY ISSUING A NOTIC E UNDER SUB- SECTION (2) OF SECTION 22, THE PREVIOUS UNDERASSESSMENT IS SET ASIDE AND THE WHOLE ASSESSMENT PROCEEDINGS START AFRESH . WHEN ONCE VALID PROCEEDINGS ARE STARTED UNDER SECTION 34(1)(B ), THE INCOME- TAX OFFICER HAD NOT ONLY THE JURISDICTION, BUT IT W AS HIS DUTY TO LEVY TAX ON THE ENTIRE INCOME THAT HAD ESCAPED ASSESSMEN T DURING THAT YEAR.' 10. THERE MAY NOT BE ANY DOUBT OR DISPUTE THAT ONCE AN ORDER OF ASSESSMENT IS REOPENED, THE PREVIOUS UNDERASSESSMEN T WILL BE HELD TO BE SET ASIDE AND THE WHOLE PROCEEDINGS WOUL D START AFRESH BUT THE SAME WOULD NOT MEAN THAT EVEN WHEN T HE SUBJECT MATTER OF REASSESSMENT IS DISTINCT AND DIFFERENT, T HE ENTIRE PROCEEDING OF ASSESSMENT WOULD BE DEEMED TO HAVE BE EN REOPENED. 11. IN SUN ENGINEERING WORKS P. LTD (SUPRA) ALSO, V. JAGANMOHAN RAO (SUPRA) WAS NOTICED STATING: 'THE PRINCIPLE LAID DOWN BY THIS COURT IN JAGANMOHA N RAO'S CASE, THEREFORE, IS ONLY TO THE EXTENT THAT ONCE AN ASSES SMENT IS VALIDLY REOPENED BY ISSUANCE OF A NOTICE UNDER SECTION 22(2 ) OF THE 1922 ACT (CORRESPONDING TO SECTION 148 OF THE ACT) THE P REVIOUS UNDER ASSESSMENT IS SET ASIDE AND THE ITO HAS THE JURISDI CTION AND DUTY TO LEVY TAX ON THE ENTIRE INCOME THAT HAD ESCAPED A SSESSMENT DURING THE PREVIOUS YEAR. THE JUDGMENT IN JAGANMOHAN RAO'S CASE, THEREFORE, CANNOT BE READ TO IMPLY AS LAYING DOWN THAT IN THE REASSESSMENT PROCEEDINGS VALIDLY INITIA TED, THE ASSESSEE CAN SEEK REOPENING OF THE WHOLE ASSESSMENT AND CLAIM CREDIT IN RESPECT OF ITEMS FINALLY CONCLUDED IN THE ORIGINAL ASSESSMENT. THE ASSESSEE CANNOT CLAIM RE-COMPUTATION OF THE INCOME OR REDOING OF AN ASSESSMENT AND BE AL LOWED A CLAIM WHICH HE EITHER FAILED TO MAKE OR WHICH WAS OTHERWI SE REJECTED AT THE TIME OF ORIGINAL ASSESSMENT WHICH HAS SINCE ACQ UIRED FINALITY. OF COURSE, IN THE REASSESSMENT PROCEEDINGS IT IS OPEN TO AN ASSESSEE I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 8 TO SHOW THAT THE INCOME ALLEGED TO HAVE ESCAPED ASS ESSMENT HAS IN TRUTH AND IN FACT NOT ESCAPED ASSESSMENT BUT THA T THE SAME HAD BEEN SHOWN UNDER SOME INAPPROPRIATE HEAD IN THE ORI GINAL RETURN, BUT TO READ THE JUDGMENT IN JAGANMOHAN RAO'S CASE, AS IF LAYING DOWN THAT REASSESSMENT WIPES OUT THE ORIGINA L ASSESSMENT AND THAT REASSESSMENT IS NOT ONLY CONFIN ED TO 'ESCAPED ASSESSMENT' OR 'UNDER ASSESSMENT' BUT TO T HE ENTIRE ASSESSMENT FOR THE YEAR AND STARTS THE ASSES SMENT PROCEEDING DE NOVO GIVING THE RIGHT TO AN ASSESSEE TO RE- AGITATE MATTERS WHICH HE HAD LOST DURING THE ORIGIN AL ASSESSMENT PROCEEDING, WHICH HAD ACQUIRED FINALITY, IS NOT ONLY ERRONEOUS BUT ALSO AGAINST THE PHRASEOLOGY OF SECTION 147 OF THE ACT AND THE OBJECT OF REASSESSMENT PROCE EDINGS. SUCH AN INTERPRETATION WOULD BE READING THAT JUDGME NT TOTALLY OUT OF CONTEXT IN WHICH THE QUESTIONS AROSE FOR DECISIO N IN THAT CASE. IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OUT A WORD OR A SENTENCE FROM THE JUDGMENT OF THIS COURT, DIVORCED FROM THE CONTEXT OF THE QUESTION UNDER CONSIDERATION AND TRE AT IT TO BE THE COMPLETE 'LAW' DECLARED BY THIS COURT. THE JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JUDGMENT H AVE TO BE CONSIDERED IN THE LIGHT OF THE QUESTIONS WHICH WERE BEFORE THIS COURT. A DECISION OF THIS COURT TAKES ITS COLOUR FR OM THE QUESTIONS INVOLVED IN THE CASE IN WHICH IT IS RENDERED AND WH ILE APPLYING THE DECISION TO A LATER CASE, THE COURTS MUST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIPLE LAID DOWN BY THE DECISION OF THI S COURT AND NOT TO PICK OUT WORDS OR SENTENCES FROM THE JUDGMENT, DIVO RCED FROM THE CONTEXT OF THE QUESTIONS UNDER CONSIDERATION BY THI S COURT, TO SUPPORT THEIR REASONINGS_' IT WAS FURTHERMORE HELD: 'AS A RESULT OF THE AFORESAID DISCUSSION, WE FIND T HAT IN PROCEEDINGS UNDER SECTION 147 OF THE ACT, THE INCOME TAX OFFICE R MAY BRING TO CHARGE ITEMS OF INCOME WHICH HAD ESCAPED ASSESSMENT OTHER THAN OR IN ADDITION TO THAT ITEM OR ITEMS WHICH HAVE LED TO THE ISSUANCE OF NOTICE UNDER SECTION 148 AND WHERE RESSESSMENT I S MADE UNDER SECTION 147 IN RESPECT OF INCOME WHICH HAS ESCAPED TAX, THE INCOME TAX OFFICER'S JURISDICTION IS CONFINED TO ON LY SUCH INCOME WHICH HAS ESCAPED TAX OR HAS BEEN UNDER-ASSESSED AN D DOES NOT EXTEND TO REVISING, REOPENING OR RECONSIDERING THE WHOLE ASSESSMENT OR PERMITTING THE ASSESSEE TO REAGITATE QUESTIONS WHICH HAD BEEN DECIDED IN THE ORIGINAL ASSESSMENT PROCEEDINGS. IT IS ONLY THE UNDER- ASSES SMENT WHICH IS SET ASIDE AND NOT THE ENTIRE ASSESSMENT WH EN REASSESSMENT PROCEEDINGS ARE INITIATED. THE INCOME TAX I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 9 OFFICER CANNOT MAKE AN ORDER OF REASSESSMENT INCONS ISTENT WITH THE ORIGINAL ORDER OF ASSESSMENT IN RESPECT OF MATTERS WHICH ARE NOT THE SUBJECT-MATTER OF PROCEEDINGS UNDER SECTION 147_' 12. WE MAY AT THIS JUNCTURE ALSO TAKE NOTE OF THE F ACT THAT EVEN THE TRIBUNAL FOUND THAT ALL THE SUBSEQUENT EVENTS WERE IN RESPECT OF THE MATTERS OTHER THAN THE ALLOWANCE OF 'LEASE EQUALIZA TION FUND'. THE SAID FINDING OF FACT IS BINDING ON US. DOCTRINE OF MERGE R, THEREFORE, IN THE FACT SITUATION OBTAINING HEREIN CANNOT BE SAID TO HAVE A NY APPLICATION WHATSOEVER. IT IS NOT A CASE WHERE THE SUBJECT MATT ER OF REASSESSMENT AND SUBJECT MATTER OF ASSESSMENT WERE THE SAME. THE Y WERE NOT. 13. IT MAY BE OF SOME INTEREST TO NOTICE THAT A SIM ILAR CONTENTION RAISED AT THE INSTANCE OF AN ASSESSEE WAS REJECTED BY A 3-JUD GE BENCH OF THIS COURT IN COMMISSIONER OF INCOME-TAX V. SHRI ARBUDA MILLS LTD. [231 ITR 50]. THIS COURT TOOK NOTE OF THE AMENDMENT MADE IN SECTI ON 263 OF THE ACT BY THE FINANCE ACT, 1989 WITH RETROSPECTIVE EFFECT FRO M JUNE 1, 1988, INSERTING EXPLANATION (C) TO SUB-SECTION (1) OF SECT ION 263 OF THE ACT STATING: 'THE CONSEQUENCE OF THE SAID AMENDMENT MADE WITH RE TROSPECTIVE EFFECT IS THAT THE POWERS UNDER SECTION 263 OF THE COMMISSIONER SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXT ENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN A N APPEAL. ACCORDINGLY, EVEN IN RESPECT OF THE AFORESAID THREE ITEMS, THE POWERS OF THE COMMISSIONER UNDER SECTION 263 SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO THEM BEC AUSE THE SAME HAD NOT BEEN CONSIDERED AND DECIDED IN THE APP EAL FILED BY THE ASSESSEE. THIS IS SUFFICIENT TO ANSWER THE QUES TION WHICH HAS BEEN REFERRED.' WE, THEREFORE, ARE CLEARLY OF THE OPINION THAT IN A CASE OF THIS NATURE, THE DOCTRINE OF MERGER WILL HAVE NO APPLICA TION. 14. THE MADRAS HIGH COURT IN A.K. THANGA PILLAI (SU PRA), IN OUR OPINION, HAS RIGHTLY CONSIDERED THE MATTER ALBEIT UNDER SECT ION 17 OF THE WEALTH TAX ACT, 1957 WHICH IS IN PARI MATERIA WITH THE PRO VISIONS OF THE ACT. RELYING ON SUN ENGINEERING WORKS P. LTD (SUPRA), IT WAS HELD: 'UNDER SECTION 17 OF THE WEALTH-TAX ACT, 1957, EVEN AS IT IS UNDER SECTION 147 OF THE INCOME-TAX ACT, PROCEEDINGS FOR REASSESSMENT CAN BE INITIATED WHEN WHAT IS ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. THE POWER TO DE AL WITH UNDERASSESSMENT AND THE SCOPE OF REASSESSMENT PROCE EDINGS AS EXPLAINED BY THE SUPREME COURT IN THE CASE OF SUN EN GINEERING [1992] 198 ITR 297, IS IN RELATION TO THAT WHICH HA S ESCAPED ASSESSMENT, AND DOES NOT EXTEND TO REOPENING THE EN TIRE I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 10 ASSESSMENT FOR THE PURPOSE OF REDOING THE SAME DE N OVO. AN ASSESSEE CANNOT AGITATE IN ANY SUCH REASSESSMENT PR OCEEDINGS MATTERS FORMING PART OF THE ORIGINAL ASSESSMENT WHI CH ARE NOT REQUIRED TO BE DEALT WITH FOR THE PURPOSE OF LEVYIN G TAX ON THAT WHICH HAD ESCAPED TAX EARLIER. CASES OF UNDERASSESS MENT ARE ALSO TREATED AS INSTANCES OF ESCAPED ASSESSMENT. THE ORD ER OF REASSESSMENT IS ONE WHICH DEALS WITH THE ASSESSMENT ALREADY MADE IN RESPECT OF ITEMS WHICH ARE NOT REQUIRED TO BE RE OPENED, AS ALSO MATTERS WHICH ARE REQUIRED TO BE DEALT WITH IN ORDE R TO BRING WHAT HAD ESCAPED IN THE EARLIER ORDER OF ASSESSMENT, TO ASSESSMENT. AN ASSESSEE WHO HAS FAILED TO FILE AN APPEAL AGAINST T HE ORIGINAL ORDER OF ASSESSMENT CANNOT UTILISE THE REASSESSMENT PROCE EDINGS AS AN OCCASION FOR SEEKING REVISION OR REVIEW OF WHAT HAD BEEN ASSESSED EARLIER. HE MAY ONLY QUESTION THE EXTENT OF THE REA SSESSMENT IN SO FAR AS THE ESCAPED ASSESSMENT IS CONCERNED. THE REV ENUE IS SIMILARLY BOUND_' THE SAME PRINCIPLE WAS REITERATED BY A DIVISION BEN CH OF THE CALCUTTA HIGH COURT IN COMMISSIONER OF INCOME-TAX V. KANUBHAI ENGI NEERS (P.) LTD. [241 ITR 665]. 10. WE MAY NOTICE THAT THE HONBLE SUPREME COUR T HAS CLEARLY SPELT OUT IN THE CASE OF ALAGENDRAN FINANCE LTD (SUPRA) THAT THE DOC TRINE OF MERGER IS NOT APPLICABLE IN THE CASE OF REASSESSMENT PROCEEDINGS, I.E., THE ORIGINAL ASSESSMENT ORDER DOES NOT GET MERGED WITH THE REASSESSMENT ORD ER. HENCE, THOSE MATTERS WHICH STOOD CONCLUDED IN THE EARLIER ASSESSMENT PRO CEEDING (EITHER ORIGINAL OR REASSESSMENT) CANNOT BE REAGITATED IN THE SUBSEQUEN T REASSESSMENT PROCEEDING. FURTHER IT WAS HELD THAT THE REASSESSMENT ORDER WOU LD NOT WIPE OUT THE ORIGINAL ASSESSMENT ORDER. THIS LEGAL POSITION IS CLEARLY E XPLAINED BY HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS (SUPRA) A ND THE RELEVANT OBSERVATIONS ARE EXTRACTED BELOW, AT THE COST OF RE PETITION:- ..BUT TO READ THE JUDGMENT IN JAGANMOHAN RAO'S CA SE, AS IF LAYING DOWN THAT REASSESSMENT WIPES OUT THE ORIG INAL ASSESSMENT AND THAT REASSESSMENT IS NOT ONLY CONFIN ED TO I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 11 'ESCAPED ASSESSMENT' OR 'UNDER ASSESSMENT' BUT TO T HE ENTIRE ASSESSMENT FOR THE YEAR AND STARTS THE ASSES SMENT PROCEEDING DE NOVO GIVING THE RIGHT TO AN ASSESSEE TO RE- AGITATE MATTERS WHICH HE HAD LOST DURING THE ORIGIN AL ASSESSMENT PROCEEDING, WHICH HAD ACQUIRED FINALITY, IS NOT ONLY ERRONEOUS BUT ALSO AGAINST THE PHRASEOLOGY OF SECTION 147 OF THE ACT AND THE OBJECT OF REASSESSMENT PROCEEDINGS. BEFORE US, THE CONTENTIONS OF LD A.R WAS THAT THE E ARLIER ASSESSMENT ORDER IS SET ASIDE OR GETS VACATED ONCE THE NOTICE FOR REASSESSM ENT IS ISSUED. HOWEVER, THE HONBLE APEX COURT HAS HELD THAT IT IS NO SO AND FU RTHER HELD THAT SUCH KIND OF INTERPRETATION IS NOT ONLY ERRONEOUS BUT ALSO AGAIN ST THE PHRASEOLOGY OF SECTION 147 OF THE ACT AND THE OBJECT OF REASSESSMENT PROCE EDINGS. 11. THE DECISION RENDERED BY HONBLE KERALA HIGH COURT IN THE CASE OF K.KESAVA REDDIAR (SUPRA), ON WHICH HEAVY RELIANCE WAS PLACED BY LD A.R, HAS BEEN RENDERED PRIOR TO THE DECISION OF HONBLE APEX COUR T IN THE CASE OF SUN ENGINEERING WORKS (SUPRA). 12. WE NOTICE THAT THE HONBLE JURISDICTIONAL KER ALA HIGH COURT REFERRED TO ITS DECISION RENDERED IN THE CASE OF K. KESAVA REDDIAR (SUPRA) IN ANOTHER DECISION RENDERED IN THE CASE OF KERALA KAUMUDI (P) LTD VS. CIT (181 ITR 30). IN THIS CASE, THE JURISDICTIONAL HIGH COURT CONSIDERED THE DECISION RENDERED BY HONBLE PATNA HIGH COURT IN THE CASE OF K.C. MUKHERJEE VS. CIT (1959)(37 ITR 224) AND THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BURMAH OIL CO. LTD (1963)(47 ITR 25) AND FINALLY HELD AS UNDER:- I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 12 A SURVEY OF THE ABOVE DECISIONS ESTABLISHES THAT T HERE CAN BE ONLY ONE ASSESSMENT FOR EACH YEAR, THAT ONCE PROCEEDINGS UND ER SECTION 147 OF THE ACT ARE INITIATED BY ISSUING A NOTICE UNDER SECTION 148 READ WITH SECTION 139(2) OF THE ACT, THE ASSESSMENT PROCEEDING START AFRESH, AND THAT THE PROCEEDINGS FOR ASSESSMENT OF THAT YEAR WILL BE PEN DING AND WILL CONTINUE UNTIL A FINAL ORDER OF ASSESSMENT IS RENDERED. WE ARE NOT CALLED UPON TO DECIDE IN THIS CASE WHETHER, BY ISSUE OF A NOTICE F OR REOPENING, THE PREVIOUS ASSESSMENT AS SUCH IS SET ASIDE OR ONL Y THE PREVIOUS UNDER ASSESSMENT ALONE IS SET ASIDE. IN THIS CASE, WHEN THE ASSESSMENT IS REOPENED, SECTION 143(3) OF THE ACT I S ATTRACTED AND SINCE THE INTENDED ADDITION TO THE RETURNED INCOME WAS MO RE THAN ONE LAKH RUPEES (DURING THE RELEVANT TIME) IT BEHOVED THE IN COME TAX OFFICER TO REFER THE MATTER UNDER SECTION 144B OF THE ACT. TH E INCOME TAX OFFICER IS MANDATED BY SECTION 144B OF THE ACT TO MAKE SUCH A REFERENCE. THE APPELLATE TRIBUNAL WAS JUSTIFIED IN HOLDING SO. THOUGH THE QUESTION THAT WAS POSED TO THE HONBLE H IGH COURT WAS DIFFERENT AND NOT ABOUT THE VALIDITY OR EXISTENCE OF THE ORIGINAL ASSESSMENT ORDER AS SUCH, IF THE INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT RESULTS IN A REASSESSMENT ORDER, YET THE HONBLE HIGH COURT POSE D A QUESTION TO ITSELF AS TO WHETHER THE PREVIOUS ASSESSMENT AS SUCH IS SET ASID E OR ONLY THE PREVIOUS UNDER ASSESSMENT ALONE IS SET ASIDE. HOWEVER, THE COURT DECLINED TO ANSWER THE SAME, SINCE IT WAS NOT THE ISSUE BEFORE IT. HOWEVER, THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS HAVE CLARIFIED THAT IT IS ONLY THE UNDERASSESSMENT THAT IS SET ASIDE BY INITIATION OF PROCEEDINGS U/S 147 OF THE ACT. 12. THE PURPOSE OF PASSING ASSESSMENT ORDER IS TO DETERMINE THE TOTAL INCOME OF AN ASSESSEE AND FURTHER TO DETERMINE THE TAX PAY ABLE BY HIM. IN FACT, THE INCOME TAX ACT PROVIDES FOR SERVICE OF THE NOTICE OF DEMAND TO THE ASSESSEE U/S 156 OF THE ACT. SECTION 156 OF THE ACT READS A S UNDER:- I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 13 156. WHEN ANY TAX, INTEREST, PENALTY, FINE OR ANY OTHER SUM IS PAYABLE IN CONSEQUENCE OF ANY ORDER PASSED UNDER THIS ACT, THE ASSESSING OFFICER SHALL SERVE UPON THE ASSESSEE A NOTICE OF DEMAND IN THE PRESCRIBED FORM SPECIFYING THE SUM SO PAYABLE. UNDER THE INCOME TAX ACT, THE TAX IS DETERMINED ON THE TOTAL INCOME DETERMINED FOR A PARTICULAR ASSESSMENT YEAR. IN TH E CASE OF REASSESSMENT PROCEEDINGS RELATING TO A PARTICULAR YEAR, THE TOT AL INCOME CANNOT BE DETERMINED UNLESS THE INCOME ALREADY ASSESSED FOR T HAT YEAR IN AN EARLIER ASSESSMENT PROCEEDING IS ALSO TAKEN INTO ACCOUNT. FOR EXAMPLE, THE TOTAL INCOME OF AN ASSESSEE NAMED A WAS DETERMINED AT RS.10.00 LAKHS IN AN EARLIER ASSESSMENT PROCEEDING FOR A PARTICULAR YEAR. THE A O, ON NOTICING ESCAPEMENT OF INCOME TO THE TUNE OF SAY RS.5.00 LAKHS, RE-OPENS T HE ASSESSMENT AND ASSESS THE SAID ESCAPED INCOME. AS A RESULT OF THE REASSESSME NT ORDER, THE TOTAL INCOME OF ASSESSEE A SHALL BE COMPUTED AT RS.15.00 LAKHS, I .E., BY AGGREGATING THE TOTAL INCOME ALREADY ASSESSED AND THE AMOUNT OF ESCAPEMEN T. HENCE, BY VIRTUE OF PASSING OF THE REASSESSMENT ORDER, THE TOTAL INCOME ALREADY DETERMINED IS SET ASIDE AND GETS ADDED TO THE ESCAPED INCOME RESULTIN G IN A REVISED FIGURE OF TOTAL INCOME. IN OUR VIEW, THE DECISION RENDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KESAVA REDDIAR (SUPRA) SHOULD BE UNDERSTOOD IN THE ABOVE SAID MANNER, SINCE THE HONBLE SUPREME COURT HAS CL EARLY HELD THAT THE ISSUES SETTLED IN THE EARLIER ASSESSMENT PROCEEDING CANNOT BE REAGITATED OR CONSIDERED IN THE REASSESSMENT PROCEEDING AND FURTHER ONLY THE UNDER ASSESSMENT IS SET ASIDE BY ISSUING NOTICE U/S 148 OF THE ACT. IN R ESPECT OF SETTLED MATTERS, THE HONBLE APEX COURT HAS HELD THAT THE EARLIER ASSESS MENT ORDER SHALL HAVE ITS I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 14 VALIDITY. THE CUMULATIVE EFFECT OF ALL THESE DISCU SSIONS, IN OUR VIEW, SHOWS THAT IT IS ONLY THE OPERATION OF THE EARLIER ASSESSMENT ORD ER WITH REGARD TO THE DEMAND RAISED THEREIN IS SET ASIDE OR VACATED AND NOT THE ENTIRE ASSESSMENT ORDER. IN FACT THE DEMAND RAISED IN THE EARLIER ASSESSMENT OR DER GETS RE-COMPUTED IN THE REASSESSMENT ORDER ON DETERMINATION OF REVISED TOTA L INCOME. 13. THE FOREGOING DISCUSSIONS WOULD SHOW THAT T HERE IS NO SUBSTANCE IN THE CONTENTIONS OF LD A.R THAT THE EARLIER ASSESSMENT O RDER WOULD BE A NULLITY. 14. IN THE NEXT GROUND, THE ASSESSEE HAS POINTE D OUT THAT THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ASSESSMENT ORDER WI THOUT SUPPLYING THE REASONS FOR RE-OPENING, THOUGH THE ASSESSEE HAS SPECIFICALL Y ASKED FOR THE REASONS IN HIS LETTER DATED 17.8.2009. THE LD A.R DREW OUR ATTENT ION TO THE SAID LETTER WHICH READS AS UNDER:- TO 17.08.2009 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE I, KOTTAYAM. DEAR SIR, REF.: ASSESSMENT YEAR 2007-08 SUB.: NOTICE UNDER SECTION 148 DATED 04-08-2009 THE RETURN OF INCOME ORIGINALLY FILED MAY KINDLY BE TREATED AS RETURN PURSUANT TO THE ABOVE NOTICE. PLEASE FAVOUR US WITH A COPY OF THE REASON RECORDED FOR REOPENING AND ISSUING NOTICE U/S 148 TO ENABLE US TO FILE THE OBJ ECTION AS PER APEX COURT JUDGEMENT IN 259 ITR 19. RAJU SEBASTIAN I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 15 A CAREFUL PERUSAL OF THE LETTER EXTRACTED ABOVE CLE ARLY SHOWS THAT THE ASSESSEE HAD SOUGHT FOR REASONS ALONG WITH THE FILING OF RET URN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE ASSESSING OFFICER HAS FURNISHED THE REASONS TO THE ASSESSEE. WE NOTICE THAT THE LD CIT(A) HAS REJECTED THE SAID CONTENTIONS OF THE ASSESSEE ONLY FOR THE REASON THAT THE ASSESSEE HAS FURNISHED THE DETAILS CALLED FOR BY THE ASSESSEE IN HIS SUBSEQUENT LETTER DATED 04.11.2010 AND FAILED T O ASK FOR THE REASONS FOR RE- OPENING OF ASSESSMENT IN THAT LETTER. WE ARE AFRAI D, THE SAID VIEW OF THE LD CIT(A) IS NOT IN ACCORDANCE WITH THE PROCEDURE PRES CRIBED BY THE HONBLE APEX COURT IN THE CASE OF G.K.N. DRIVE SHAFTS (INDIA) LT D VS. ITO (259 ITR 19), WHEREIN THE HONBLE APEX COURT HAS HELD AS UNDER:- WE SEE NO JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER UNDER CHALLENGE. HOWEVER, WE CLARIFY THAT WHEN A NOTICE UNDER SECTIO N 148 OF THE INCOME TAX ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR IS SUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHI N A REASONABLE TIME. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOS E OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE, AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, THE ASSESSING OFFIC ER HAS TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A SPEAKING ORDER, BEFORE PROCEEDING WITH THE ASSESSMENT IN RESPECT OF THE ABOVE SAID FIVE AS SESSMENT YEARS. THE HONBLE SUPREME COURT, IN THE ABOVE CITED CASE, HAS HELD THAT THE ASSESSING OFFICER SHOULD ADDRESS THE OBJECTIONS RAISED BY THE ASSESSEE BY PASSING A SPEAKING ORDER. APPARENTLY, IN THIS CASE, THE ASSE SSING OFFICER HAS NOT FURNISHED THE REASONS FOR REOPENING OF ASSESSMENT TO THE ASSE SSEE, THOUGH THE ASSESSEE I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 16 HAS ASKED FOR IT BY HIS LETTER DATED 17.08.2009. H ENCE THE ASSESSEE DID NOT GET AN OPPORTUNITY TO FILE HIS OBJECTIONS AND HENCE THE RE WAS NO OCCASION FOR THE ASSESSING OFFICER TO ADDRESS THOSE OBJECTIONS. SIN CE THE PROCEDURES PRESCRIBED BY THE HONBLE APEX COURT IN THE CASE OF G.K.N DRIV E SHAFT (SUPRA) HAVE NOT BEEN FOLLOWED, A PROCEDURAL IRREGULARITY HAS OCCURR ED HEREIN. IT IS A SETTLED PROPOSITION THAT THE APPELLATE AUTHORITIES SHOULD R ESTORE THE PROCEEDINGS TO THE STAGE WHERE THE SAID PROCEDURAL IRREGULARITY HAS OC CURRED. 15. ACCORDINGLY, THE BENCH PROPOSED TO RESTORE A LL THE MATTERS TO THE ASSESSING OFFICER SO THAT THE ASSESSING OFFICER CAN FURNISH T HE REASONS FOR REOPENING TO THE ASSESSEE AND THE ASSESSEE COULD FILE HIS OBJECTIONS AGAINST WHICH THE ASSESSING OFFICER CAN PASS ORDER ADDRESSING THOSE OBJECTIONS IN TERMS OF THE PROCEDURES PRESCRIBED BY THE HONBLE APEX COURT IN THE CASE OF G.K.N. DRIVE SHAFT (SUPRA). THE LD A.R ACCEPTED THE SAID PROPOSAL AND THE LD D. R ALSO DID NOT EXPRESS ANY OBJECTION TO IT. 16. IN VIEW OF THE ABOVE, WE DO NOT FIND IT NEC ESSARY TO ADDRESS ALL OTHER GROUNDS URGED BY THE ASSESSEE BEFORE US. ACCORDING LY, WE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE ALL THE MATTERS TO THE FILE O F THE ASSESSING OFFICER WITH THE DIRECTION TO FURNISH THE REASONS FOR REOPENING OF A SSESSMENT TO THE ASSESSEE AND FOLLOW THE PROCEDURE PRESCRIBED BY HONBLE APEX COU RT IN THE CASE OF G.K.N. DRIVE SHAFTS (INDIA) LTD (SUPRA) AND COMPLETE THE A SSESSMENT DE NOVA, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I.T.A. NO.89 /COCH/2014 & S.P. NO. 17/COCH/2014 17 17. SINCE WE HAVE DECIDED THE APPEAL FILED BY TH E ASSESSEE, THE STAY PETITION BECOMES INFRUCTUOUS AND ACCORDINGLY WE DISMISS THE SAME. 18. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS TREATED AS PARTLY ALLOWED AND THE STAY PETITION FILED BY THE ASSESSEE IS DISM ISSED. PRONOUNCED ACCORDINGLY ON 09 -05-2014. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 9TH MAY, 2014 GJ COPY TO: 1. SHRI RAJU SEBASTIAN, POOVELIL HOUSE, KIZHAPARAYA RU P.O., POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1 , KOTTAYAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN