Jass Roller Flour Mills P.Ltd, Kottayam V. ACIT, Kottayam

ITSSA 48/COCH/2004

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8517 (ITAT-COCHIN)
• Duration Of Justice: 8 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2012
• Assessment Year: misc
• Appeal Filed On: 11-05-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: R KRISHNAN
• Keywords: Block assessment

Judgement Text

1 IT(SS)A NO.48 & 49/COCH/2004 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T(SS)A NO.48 & 49/COCH/2004 (BLOCK PERIOD A.Y.89-90 TO 98-99 & BROKEN PERIOD UPTO 1 9-08-1998) JASS ROLLER FLOUR MILLS (P) LTD VS THE A.C.I.T, I NV.CIR. ATHIRAMPUZHA KOTTAYAM ETTUMANNOOR PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R KRISHNAN RESPONDENT BY : MS. A.S. BINDHU DATE OF HEARING : 23-08-2012 DATE OF PRONOUNCEMENT : 12-10-2012 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEALS OF THE TAXPAYER ARE AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX(A) AGAINST BLOCK ASSESSMENT AND PENALTY LE VIED U/S 158BFA(2) OF THE ACT. 2. BOTH THE APPEALS WERE DISPOSED OF EARLIER BY THI S TRIBUNAL BY AN ORDER DATED 12-12-2005. HOWEVER, ON APPEAL BY THE REVENUE, THE HIGH COURT FOUND THAT THE TRIBUNAL EXCEEDED ITS JURISDICTION BY DECI DING THE MATTER PERTAINING TO ESTIMATION OF INCOME FOR VARIOUS YEARS IN THE BLOCK PERIOD WHICH WERE NOT RAISED BEFORE THE COMMISSIONER OF INCOME-TAX(A). ACCORDING LY, THE MATTER WAS 2 IT(SS)A NO.48 & 49/COCH/2004 REMANDED BACK TO THE FILE OF THIS TRIBUNAL FOR RECON SIDERATION AFTER CONSIDERING THE DEPARTMENTS OBJECTION ABOUT THE MAINTAINABILIT Y OF THE FIRST GROUND RAISED BY THE TAXPAYER IN THE APPEAL BEFORE THIS TRIBUNAL. 3. SHRI R KRISHNAN, THE LD.REPRESENTATIVE FOR THE TA XPAYER SUBMITTED THAT BEING AGGRIEVED BY THE ESTIMATION OF PROFIT BY THE ASSESSING OFFICER FOR THE BLOCK PERIOD, THE TAXPAYER HAS RAISED THE GROUNDS BEFORE THIS TRIBUNAL. ACCORDING TO THE LD.REPRESENTATIVE, ESTIMATION OF PROFIT IS VERY MUCH AVAILABLE IN THE ORDER OF ASSESSMENT. HOWEVER, BY MISTAKE, THIS GROUND WAS NO T RAISED BEFORE COMMISSIONER OF INCOME-TAX(A). ACCORDING TO THE LD. REPRESENTATIVE, ALL THE FACTS ARE AVAILABLE ON RECORD WITH REGARD TO ESTIMATION O F PROFIT. THEREFORE, THIS GROUND OF APPEAL HAS TO BE CONSIDERED TO ASSESS THE CORRECT INCOME OF THE TAXPAYER. 4. ON THE CONTRARY, MS. A.S. BINDHU, THE LD.DR SUBM ITTED THAT THE TAXPAYER HAS NOT RAISED ANY GROUND WITH REGARD TO ESTIMATION OF PROFIT BEFORE COMMISSIONER OF INCOME-TAX (A). THEREFORE, THE COMM ISSIONER OF INCOME-TAX(A) HAD NO OCCASION TO CONSIDER THE ESTIMATION OF PROFI T DURING THE FIRST APPELLATE STAGE; HENCE THIS GROUND CANNOT BE ADMITTED AT THIS STAGE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CONSIDERED THE O BJECTION OF THE LD.DR WITH REGARD TO ADMISSIBILITY OF THE GROUND RAISED BY THE TAXPAYER WITH REGARD TO ESTIMATION OF PROFIT. FROM THE ASSESSMENT ORDER IT APPEARS THAT THE ASSESSING OFFICER ESTIMATED THE PROFIT AT 6.19% ON THE UNACCO UNTED SALE OF RS. 1,44,39,697. ACCORDINGLY, THE PROFIT WAS ESTIMATED AT RS. 9,53,0 20. NO DOUBT, THE TAXPAYER HAS NOT RAISED ANY GROUND WITH REGARD TO ESTIMATION OF PROFIT BEFORE THE 3 IT(SS)A NO.48 & 49/COCH/2004 COMMISSIONER OF INCOME-TAX(A). BUT THE FACT REMAINS IS THAT THE ESTIMATION OF PROFIT ON THE UNACCOUNTED SALES IS AVAILABLE ON REC ORD. AS FOUND BY THE KERALA HIGH COURT WHEN THE TAXPAYER RAISED NEW GROUND BEFO RE THIS TRIBUNAL, THIS TRIBUNAL CANNOT NOT STEP INTO THE SHOES OF THE LOWE R AUTHORITIES. IN OTHER WORDS, THE LOWER AUTHORITY HAS TO DECIDE THE CASE ONE OR T HE OTHER WAY FIRST SO AS TO ENABLE THIS TRIBUNAL TO EXERCISE ITS APPELLATE JURI SDICTION. SINCE THE ESTIMATION OF PROFIT IS NOT EXAMINED BY THE COMMISSIONER OF INCOM E-TAX(A) FOR THE OBVIOUS REASON THAT IT WAS NOT BEFORE HIM, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) HAS TO EXAMINE THE ISSUE FIRST. 6. NOW COMING TO THE OBJECTION OF THE LD.DR REGARDI NG THE MAINTAINABILITY OF THE GROUND, ESTIMATION OF PROFIT IS VERY MUCH AVAIL ABLE IN THE ORDER OF ASSESSMENT. THE FACTS ARE ALSO VERY MUCH ON RECORD . THE VERY PURPOSE OF INCOME-TAX PROCEEDINGS IS TO COMPUTE THE CORRECT INC OME AND LEVY TAX ON THAT. THIS TRIBUNAL BEING A FINAL FACT FINDING AUTHORITY HAS TO SETTLE THE ISSUE FINALLY ONE WAY OR THE OTHER. IF THE GROUND RAISED BY THE TAXP AYER IS NOT ADMITTED BY THE TRIBUNAL, THEN THE TAXPAYER MAY NOT HAVE ANY REMEDY BEFORE ANY OTHER FORUM. THE INTENTION OF THE LEGISLATURE IS TO PROVIDE EVER Y OPPORTUNITY TO THE TAXPAYER AND SETTLE THE TAX DISPUTE. BY KEEPING THE INTENTIO N OF THE LEGISLATURE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT ADMITTIN G THE GROUND RAISED BY THE TAXPAYER WITH REGARD TO ESTIMATION OF PROFIT WILL N OT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY. THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT ADMITTING THE GROUND WITH REGARD TO ESTIMATION OF PROFIT WOULD DE FINITELY PROMOTE THE CAUSE OF JUSTICE. THEREFORE, THIS TRIBUNAL FIND NO MERIT I N THE OBJECTION OF THE LD.DR WITH REGARD TO THE MAINTAINABILITY OF THE GROUND RAISED BY THE TAXPAYER IN RESPECT OF ESTIMATION OF PROFIT. ACCORDINGLY, THE GROUND RAIS ED BY THE TAXPAYER BEFORE THIS TRIBUNAL IS ADMITTED. 4 IT(SS)A NO.48 & 49/COCH/2004 7. AS EARLIER DISCUSSED, THE COMMISSIONER OF INCOME -TAX(A) HAD NO OCCASION TO DISPOSE OF THE ISSUE. THEREFORE, THE ISSUE WITH REGARD TO ESTIMATION OF PROFIT IS REMITTED BACK TO THE FILE OF THE COMMISSIONER OF INC OME-TAX(A). THE COMMISSIONER OF INCOME-TAX(A) IS DIRECTED TO EXAMINE THE ISSUE WITH REGARD TO ESTIMATION OF PROFIT AFTER CONSIDERING THE CONTENTI ONS OF THE TAXPAYER AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE TAXPAYER. 8. SINCE THE ISSUE REGARDING ESTIMATION OF PROFIT I S REMITTED BACK TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A) FOR CONSIDERATION, THE PENALTY LEVIED U/S 158BFA(2) IS ALSO NEEDS TO BE RECONSIDERED IN THE L IGHT OF THE DECISION THAT MAY BE ARRIVED AT BY THE COMMISSIONER OF INCOME-TAX(A) O N ESTIMATION OF PROFIT. ACCORDINGLY, THE ORDER OF THE COMMISSIONER OF INCOM E-TAX(A) CONFIRMING THE LEVY OF PENALTY U/S 158BFA(2) IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A) FOR RECONSIDERATION. THE COMMISSIONER OF INCOME-TAX(A) MAY RECONSIDER AFRESH AND DECIDE THE S AME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO T HE TAXPAYER. 9. IN THE RESULT, BOTH THE APPEALS OF THE TAXPAYER ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH OCTOBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 12 TH OCTOBER, 2012 PK/- 5 IT(SS)A NO.48 & 49/COCH/2004 COPY TO: 1. THE APPELLANT 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