Sri R.Prasad on behalf of Lekshmi Traders, Alappuzha V. DCIT, Kollam

ITSSA 8/COCH/2009

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8509 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-10-2012
• Assessment Year: misc
• Appeal Filed On: 22-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Keywords: Competent authority; Block assessment

Judgement Text

1 IT(SS)A NO. 08/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T(SS)A NO. 08/COCH/2009 (BLOCK PERIOD 01-04-1988 TO 23-02-1999) R PRASAD ON BEHALF OF VS DY.CIT, CIR.1 LAKSHMI TRADERS KOLLAM PUTHENPURACKAL, ERUMAKUZHY NOORANAD, ALLEPPEY DIST. PAN : AAAAL1578P (APPELLANT) (RESPONDENT) APPELLANT BY : NONE WRITTEN SUBMISSIONS FILED (SHRI A.S. NARAYANAMURTHY) RESPONDENT BY : SMT. SUSAN GEORGE VARGHESE DATE OF HEARING : 25-10-2012 DATE OF PRONOUNCEMENT : 16-11-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE TAXPAYER IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 2 0-03-2009 AND PERTAINS TO BLOCK PERIOD 01-04-1988 TO 23-02-1999. 2. THIS APPEAL WAS HEARD ELABORATELY ON 09-08-2012. HOWEVER, COPY OF THE HIGH COURT JUDGMENT REFERRED TO IN THE IMPUGNED ORDER OF COMMISSIONER OF INCOME-TAX(A) IN W.P.(C) NO.32304 O F 2006(U) WAS NOT 2 IT(SS)A NO. 08/COCH/2009 AVAILABLE ON RECORD. ACCORDINGLY, THE APPEAL WAS R EPOSTED FOR FILING THE COPY OF THE HIGH COURT JUDGMENT IN THE ABOVE WRIT PE TITION. THE LD.REPRESENTATIVE FOR THE TAXPAYER, SHRI A.S. NARAY ANAMURTHY HAS FILED THE COPY OF THE JUDGMENT 05-12-2006 IN THE ABOVE WRIT PE TITION. FROM THE JUDGMENT OF THE HIGH COURT IN THE ABOVE SAID WRIT PE TITION IT APPEARS THAT THE TAXPAYER HAS CHALLENGED THE ISSUE OF NOTICE U/S 158BC OF THE ACT. THE HIGH COURT FOUND THAT THE VALIDITY OF NOTICE ISSUED U/S 158BC CANNOT BE CONSIDERED IN THE WRIT PETITION SINCE SUCH ISSUES A RE TO BE CONSIDERED BY THE COMPETENT AUTHORITY DURING THE COURSE OF THE PROCEE DINGS. ACCORDINGLY, THE WRIT PETITION WAS DISMISSED GIVING LIBERTY TO T HE ASSESSING AUTHORITY TO CONSIDER ALL LEGITIMATE OBJECTIONS OF THE TAXPAYER W ITH REGARD TO ISSUE OF NOTICE U/S 158BC OF THE ACT. 3. THE MAIN OBJECTION OF THE LD.REPRESENTATIVE FOR T HE TAXPAYER IS THAT A BLOCK ASSESSMENT HAS ALREADY BEEN MADE IN THE CASE OF LEKSHMI TRADERS IN RESPECT OF THE VERY SAME AMOUNT FOR THE VERY SAME B LOCK PERIOD. THE TRIBUNAL, IN THAT CASE, ON THE APPEALS BY THE TAXPA YER AND THE REVENUE FOUND THAT THE INITIATION OF THE BLOCK ASSESSMENT P ROCEEDINGS WAS BAD IN LAW. ACCORDINGLY, THE ENTIRE BLOCK ASSESSMENT WAS STRUCK DOWN IN IT(SS)A NOS.14 & 17/COCH/2002 ORDER DATED 27-02-2004. THE REVENUE FILED APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER OF THIS TRI BUNAL IN IT(SS)A NOS 14&17/COCH/2002 AND THE HIGH COURT VACATED THE ORDE R OF THIS TRIBUNAL AND REMANDED BACK THE MATTER FOR FRESH DECISION ON MERIT AFTER HEARING THE PARTIES. SINCE THE MATTER HAS BEEN REMANDED BACK T O THE FILE OF THIS TRIBUNAL, ACCORDING TO THE LD.REPRESENTATIVE, THE I NITIATION OF PROCEEDINGS IN 3 IT(SS)A NO. 08/COCH/2009 THE HANDS OF THE PRESENT TAXPAYER IS NOT VALID. AC CORDING TO THE LD.REPRESENTATIVE, MAKING ANY ADDITION IN THE HANDS OF THE TAXPAYER WOULD AMOUNT TO DOUBLE ADDITION. WE HEARD THE LD.DR ALSO . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT A BLOCK ASSESSMENT WAS MADE IN THE HANDS OF M/S LEKSHMI TRADERS. THE PRESENT ASSESSMENT IS MADE IN THE NAME OF R PRASAD ON BEHALF OF LEKSHMI T RADERS. THEREFORE, BOTH THE ASSESSMENTS ARE IN THE NAME OF LEKSHMI TRA DERS ONLY. NO DOUBT, THE ORIGINAL ASSESSMENT MADE IN THE CASE OF LEKSHMI TRADERS WAS STRUCK DOWN BY THIS TRIBUNAL BY AN ORDER DATED 27-02-2004 ON TECHNICAL GROUND. THE HIGH COURT, HOWEVER, REMANDED THE MATTER BACK T O THE FILE OF THE TRIBUNAL FOR RECONSIDERATION ON MERIT. AS PER THE DIRECTION OF THE HIGH COURT, THE ASSESSMENT PROCEEDINGS WAS RECONSIDERED BY THIS TRIBUNAL AND THE ADDITION MADE IN THE HANDS OF LEKSHMI TRADERS W AS UPHELD BY THIS TRIBUNAL IN IT(SS) A NOS.14 & 17/COCH/2002 BY AN OR DER DATED 12-10-2012. THE PRESENT ASSESSMENT PROCEEDINGS IN THE CASE OF R PRASAD ON BEHALF OF LEKSHMI TRADERS WERE INITIATED ONLY ON THE GROUND T HAT THE ASSESSMENT PROCEEDINGS IN THE HANDS OF LAKSHMI TRADERS WERE ST RUCK DOWN BY THIS TRIBUNAL. NOW THE FACT REMAINS IS THAT THE ASSESSM ENT PROCEEDINGS IN THE HANDS OF LEKSHMI TRADERS WERE RESTORED AND THE ADDI TION MADE IN THE CASE OF LEKSHMI TRADERS HAS BEEN CONFIRMED BY THIS TRIBU NAL BY AN ORDER DATED 12-10-2004. THEREFORE, THE VERY SAME AMOUNT CANNOT BE ADDED IN THE CASE OF SHRI R PRASAD ON BEHALF OF LEKSHMI TRADERS. THE REFORE, AS RIGHTLY SUBMITTED BY THE LD.REPRESENTATIVE FOR THE TAXPAYER THAT THE ADDITION IN THE 4 IT(SS)A NO. 08/COCH/2009 HANDS OF THE PRESENT TAXPAYER WOULD BE DOUBLE ADDIT ION SINCE THE ASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED IN THE HANDS OF LEKSHMI TRADERS WHICH IS CONFIRMED BY THIS TRIBUNAL . THEREFORE, WE DO NOT FIND ANY REASON FOR MAKING ANY ASSESSMENT IN THE HA NDS OF PRESENT TAXPAYER. ACCORDINGLY, THE ORDERS OF LOWER AUTHORI TIES ARE QUASHED. 5. IN THE RESULT, THE APPEAL OF THE TAXPAYER STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 16 TH NOVEMBER, 2012 PK/- 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