A. Janardhnan, Thrissur V. ACIT, Thrissur

ITSSA 4/COCH/2008

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7813 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-01-2012
• Assessment Year: misc
• Appeal Filed On: 17-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Keywords: Unexplained investment

Judgement Text

1 I.T (SS)A. NO 04/COCH/2008 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) & SHRI B.R. BASKARAN (AM) IT(SS)A NO.04/COCH/2008 (BLOCK PERIOD 01-04-1986 TO 12-12-1996) SHRI A JANARDHANAN VS THE A.C.I.T., CIR.2(1) ARAKKAL HOUSE THRISSUR OLLUR PO, THRISSUR PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARUN RAJ S RESPONDENT BY : MS VIJAYAPRABHA DATE OF HEARING : 05-01-2012 DATE OF PRONOUNCEMENT : 06-01-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE ASSESSING OFFICER DATED 07-12-2007 FOR THE BLOCK PERIOD 01-04-198 6 TO 12-12-1996. 2. SHRI ARUN RAJ S, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS THE SECOND ROUND OF LITIGATION BEFORE THIS TRIBUNAL. IN THE F IRST ROUND OF LITIGATION THIS TRIBUNAL IN IT(SS)A NO. 8 & 9(COCH)/2002 BY AN ORDER DATED 16-03 -2007 CONSIDERED THE ISSUE OF UNEXPLAINED INVESTMENT IN MAMATHA HOTELS TO THE EXT ENT OF RS.6,50,000 AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. TH E ASSESSEE FILED APPEAL AGAINST THE ORDER OF THIS TRIBUNAL DATED 16-03-2007 BEFORE THE HIGH COU RT IN ITA NUMBER 1569 OF 2009. 2 I.T (SS)A. NO 04/COCH/2008 THE HIGH COURT BY A JUDGMENT DATED 28-10-2010 DISPOSE D OF THE APPEAL; HOWEVER, DIRECTED THE ASSESSING OFFICER TO TAKE INTO ACCOUNT THE SIGNIFICANCE OF THE DECISION OF THE TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTELS. ACCORDING TO THE LD.COUNSEL, THE DECISION OF THIS TRIBUNAL IN THE CASE OF PARTNERS O F MAMATHA HOTELS WAS CONFIRMED BY THE HIGH COURT. THEREFORE, THE HIGH COURT INTENDED TO CONSIDER THAT DECISION BY THE ASSESSING OFFICER WHILE RE-EXAMINING THE MATTER CONS EQUENT TO THE ORDER OF THIS TRIBUNAL DATED 16-03-2007. ACCORDING TO THE LD.REPRESENTATIVE , THE ASSESSING OFFICER, IN THE MEANTIME HAS PASSED AN ORDER WITHOUT CONSIDERING TH E DECISION OF THIS TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTELS. THEREFORE, ACC ORDING TO THE LD.REPRESENTATIVE, THE MATTER NEEDS TO BE AGAIN REMANDED BACK TO THE FILE O F THE ASSESSING OFFICER TO CONSIDER THE DECISION OF THIS TRIBUNAL IN THE CASE OF PARTNE RS OF MAMATHA HOTELS AND THEREAFTER TO DECIDE THE UNEXPLAINED INVESTMENT IN ACCORDANCE WIT H LAW. 3. WE HEARD MS. VIJAPRABHA, THE LD.DR ALSO. THE LD .DR SUBMITTED THAT THE ASSESSING OFFICER, IN COMPLIANCE TO THE DIRECTION OF THE TRIB UNAL HAS PASSED AN ORDER. REFERRING TO THE ASSESSMENT ORDER, THE LD.DR SUBMITTED THAT THE ASSESSEE IS AN INVESTOR IN MAMATHA HOTELS THROUGH DR RAMESHKUMAR ONE OF THE PARTNERS. THEREFORE, THE ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF MATERIAL AVAI LABLE ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT REMAINS IS THAT IN THE EARLIER ROUND OF LITIGATION, THIS TRIBUNAL BY AN ORDER DATED 16-03-2007 REMANDED B ACK THE ISSUE OF UNEXPLAINED INVESTMENT IN MAMATHA HOTELS TO THE FILE OF THE ASS ESSING OFFICER FOR CONSIDERATION. IN THE MEANTIME ON THE APPEAL FILED BY THE ASSESSEE, T HE HIGH COURT DIRECTED THE ASSESSING OFFICER TO CONSIDER THE SIGNIFICANCE OF THE DECISIO N OF THE TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTELS WHICH WAS CONFIRMED BY THE HIGH C OURT. THE HIGH COURT HAS FURTHER OBSERVED THAT THE TRIBUNAL HAS MADE ONLY AN OPEN RE MAND WITHOUT DECIDING THE ISSUE. 3 I.T (SS)A. NO 04/COCH/2008 THEREFORE, IN VIEW OF THIS DIRECTION OF THE HIGH CO URT, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO TAKE INTO ACCOUNT THE SIGNIFICANCE OF THE DECISION OF THE TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTELS. ADMITTEDLY, THE DECISI ON OF THIS TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTEL WAS NOT TAKEN INTO CONSIDE RATION BY THE ASSESSING OFFICER WHILE PASSING THE IMPUGNED ASSESSMENT ORDER FOR THE BLOCK PERIOD. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER, AFTER TAKING INTO ACCOUNT THE SIGNIFICANCE OF THE DECISION OF THIS TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTEL. ACCORDINGLY, TH E ORDER OF THE ASSESSING OFFICER IS SET ASIDE AND THE ISSUE OF UNEXPLAINED INVESTMENT IN TH E CASE OF MAMTHA HOTEL IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSE SSING OFFICER SHALL TAKE INTO CONSIDERATION THE DECISION OF THIS TRIBUNAL IN THE CASE OF PARTNERS OF MAMATHA HOTEL AS DIRECTED BY THE HIGH COURT AND THEREAFTER DECIDE TH E ISSUE IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 TH DAY OF JANUARY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 06 TH JANUARY, 2012 PK/- 4 I.T (SS)A. NO 04/COCH/2008 COPY TO: 1. SHRI A JANARDHANAN, ARAKKAL HOUSE, OLLUR PO, THRISSUR 2. A.C.I.T., CIR.2(1), THRISSUR 3. THE COMMISSIONER OF INCOME-TAX(A) 4. THE COMMISSIONER OF INCOME-TAX, 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH