Mariamma George Vettath, Ernakulam V. ACIT, Ernakulam

ITSSA 25/COCH/2006

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9494 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-02-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 09-02-2010
• Assessment Year: misc
• Appeal Filed On: 06-04-2006
• Court: TRIBUNAL
• Department Lawyers: A K THATTAI
• Assessee Lawyers: R SREEKANTAN NAIR
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T. (S&S) A.NO. 25/COCH/2006 BLOCK PERIOD:01 - 04 - 1995 TO 04 - 10 - 2001 SMT. MARIAMMA GEROGE VETTATH, ERNAKULAM. PA NO.AATPV 5743Q VS. THE ASSIST .COMMISSIONER OF INCOME-TAX,CENTRAL CIRCLE-1, ERNAKULAM. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI R.SREEKANTAN NAIR RESPONDENT BY SHRI A.K. THATTAI, CIT ,DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(APPEALS)-I, KOCHI DATED 01-02- 2006. THE ASSESSMENT YEAR INVOLVED IS FOR THE BLOCK PERIO D 01-04- 1995 TO 04-10-2001. 2. THE FACTS RELEVANT ARE THAT THE ASSESSEE IS AN I NDIVIDUAL AND IN CONNECTION WITH A SEARCH AND SEIZURE ACTION U/S.132 OF THE ACT IN THE CASE OF M/S. KAMADHENU MILK PRODU CTS AS WELL AS IN THE RESIDENTIAL PREMISES OF ASSESSEES S ON, SHRI DAVID GEORGE WHICH WAS SUBJECTED U/S.132 ON 04-10-2 001. THE LD. COUNSEL WHILE SUBMITTING HIS ARGUMENTS FOR THE IT(S&S)A NO. 25/COCH/2006 2 GROUND NO.1, RELATING TO THE ADDITION OF RS.5,07,02 2/- ON THE BASIS OF AN ALLEGED AGREEMENT SEIZED AT THE TIME OF SEARCH, RELATING TO THE TRANSFER OF THE WESTERN HALF AND TH E EASTERN HALF OF THE SECOND FLOOR TOGETHER WITH PROPORTIONAT E SHARE OF THE VETTATH BUILDING, DARBAR HALL ROAD, ERNAKULAM, SUBMITTED THAT THIS BUILDING WAS JOINTLY OWNED BY T HE ASSESSEE AND HER SON MR. DAVID GEROGE VETTATH. BY RELYING ON THE ORDER OF THE TRIBUNAL IN THE CASE OF KAMADHE NU MILK PRODUCTS AS WELL AS THE ASSESSEES SON, SHRI DAVID GEROGE VETTATH WITH TWO OTHERS, THE TRIBUNAL IN IT(S&S) A.NO.152/COCH/2004, 26/COCH/2006, 27/COCH/2006 AND 07/COCH/2008, IN PARA.NO.22 OF THE SAID ORDER OF TH E TRIBUNAL DATED 15-5-2009 WHEREIN THE ADDITION WITH REGARD TO THE PARTNER, SHRI DAVID GEORGE, WHO IS THE SON O F THE ASSESSEE, THE TRIBUNAL FOUND THAT THE ASSESSEE SHOU LD BE GIVEN PROPER HEARING BEFORE THE AUTHORITIES ON THE GROUND THAT A REASONABLE OPPORTUNITY WAS NOT AFFORDED EARL IER TO THE ASSESSEE. FOR THE ADHERENCE OF THE PRINCIPLES OF NATURAL JUSTICE, THE TRIBUNAL REMITTED THE ISSUE BACK TO TH E FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATION AFTER PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. RELYING ON THE ABOVE DECISION OF THE TRIBUNAL AND CONSIDERING THE FACT THAT BOTH ARE JOINT OWNERS OF THE IT(S&S)A NO. 25/COCH/2006 3 PROPERTY AND THE SUBMISSIONS OF THE LD. COMMISSIONE R OF INCOME-TAX, DR, WE ARE OF THE CONSIDERED OPINION TH AT THIS ISSUE ALSO SHOULD GO BACK TO THE FILE OF THE ASSESS ING OFFICER FOR PROPER ADJUDICATION ALONG WITH THE OTHER JOINT OWNER, WHO IS THE SON OF THE ASSESSEE SHRI DAVID GEORGE. TO T HAT EXTENT, THE ORDERS OF THE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER FOR PROPER ADJUDICATION. HENCE, THIS GROUND IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. 3. THE SECOND GROUND RELATES TO THE INCOME FROM TAN KER LORRY OWNED BY THE ASSESSEE. SINCE THERE WAS NO I NCOME RETURNED, THE ASSESSING OFFICER ESTIMATED THE UNDIS CLOSED INCOME OF THE ASSESSEE U/S.44AE, WHICH WAS CONFIRME D IN APPEAL BY THE CIT(APPEALS). HENCE, THE ASSESSEE IS IN APPEAL BEFORE US. DURING THE COURSE OF HEARING, THE LD. COUNSEL SUBMITTED THAT HE IS NOT PRESSING THIS GROU ND AND AS SUCH THIS GROUND MAY BE DISMISSED AS NOT PRESSED. RECORDING THE SUBMISSIONS MADE BY THE LD. COUNSEL S HRI R. SREEKANTAN NAIR, WE DISMISS GROUND NO.2, WHICH IS T HE ADDITION U/S.44AE IN RESPECT OF TANKER LORRY ALLEGE DLY OWNED BY THE ASSESSEE. IT(S&S)A NO. 25/COCH/2006 4 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 11 TH FEBRUARY,2010. PM. COPY FORWARDED TO: 1. SMT. MARIAMMA GEROGE VETTATH, VETTATH HOUSE, WARRIAM ROAD, ERNAKULAM. 2. THE ACIT., CENTRAL CIRCLE-1, ERNAKULAM. 3. CIT(A)-I, KOCHI 4. CIT, CENTRAL, KOCHI 5. D.R. BY ORDER SD/- ASSISTANT REGISTRAR