KALLULLATHIL THAZHATHEVEETIL NASIR,MANANTHAVADY V. ITO, WARD-2, KALPETTA

ITA 821/COCH/2023

AI Insights

The case involves twin appeals by Sri.Kallullathil Thazhatheveettil Nasir against the orders of the CIT (Appeal) / NFAC, which were issued under section 154 of the Income-tax Act, 1961. The appeals pertain to the assessment years 2014-2015 and 2015-2016. The primary contention of the appellant was that the income assessed under section 115BBE of the Act was incorrect, as it ignored the loss related to house property and misapplied the provisions applicable to the year under reference. The appellant argued that the income should have been assessed under the head 'Business or Profession' and subjected to regular tax, rather than being taxed as unexplained investment under section 69 read with section 115BBE. The Tribunal, however, found that the issues raised were debatable and more suited for a regular appeal rather than a rectification application.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 38401 (ITAT-COCHIN)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 28-11-2023
• Other Referred Cases: TS Balram, ITO vs. Volkart Brothers [1971] 82 ITR 50 (SC)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V.SWARNALATHA
• Keywords: Business income; Unexplained investment
• Section: 147; 250; 154; 251; 69

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Satbeer Singh Godara, Judicial Member & Shri Amarjit Singh, Accountant Member ITA No.820/Coch/2023 : Asst.Year 2014-2015 ITA No.821/Coch/2023 : Asst.Year 2015-2016 Sri.Kallullathil Thazhatheveettil Nasir, Edathil House, Fashion Village Complex Thalasery Road, Mananthavady Wayanad – 670 645. PAN : AYSPN0047J. v. The Income Tax Officer Ward 2 Kalpetta. (Appellant) (Respondent) Appellant by : --- None --- Respondent by : Smt.V.Swarnalatha, Sr.DR Date of Hearing : 16.08.2024 Date of Pronouncement : 06.11.2024 O R D E R Per Bench : These assessee’s twin appeals ITA Nos.820 & 821/Coch/2023 for the assessment years 2014-2015 & 2015- 2016 arise against the CIT (Appeal) / NFAC, as many DIN & Order Nos.ITBA/NFAC/S/250/2023-24/1056670620(1) & ITBA/NFAC/S/250/2023-24/1056667139(1), both dated 29.09.2023, respectively, in proceedings u/s. 154 of the Income-tax Act, 1961; in short “the Act” hereinafter. Cases called twice. None appears at the behest of the assessee. He is accordingly proceeded ex parte. ITA Nos.820-821/Coch/2023. Sri.Kallullathil Thazhatheveetil Nasir. 2 2. The assessee pleads the following substantive ground in it’s “lead” appeal ITA.No.820/Coch./2023 :- “1. The appellate order passed by the National Faceless Appeal Centre, Delhi is patently against the facts and circumstance of the appellant's case and hence opposed to the provisions of the Income tax Act. 2. The learned first appellate authority erred in holding that the income offered for assessment during the previous year ended 31/03/2014, is liable to be taxed under section 115 BBE of the Act, ignoring the loss relating to house property. The appellant humbly submit that the provisions relating to not granting the los relating to house property if income is liable to tax under section 115BBE, is not applicable for the year under reference, as the said restriction came into force by Finance Act 2016 read with Circular No: 3/2017 dated 20/11/2007 only and hence have no application to the year under reference. This being a mistake apparent from record, was omitted to be considered by the assessing officer as well as the first appellate authority while passing the orders. 3. The learned first appellate authority patently also erred in holding that \"the income offered for assessment fall within the ambit at section 69 as un explained investment and hence require to be taxed at the applicable rates as specified in section 115BBE of the Act effecting from assessment year 2013-14. Taxing on income under section 115BBE arise only if the identity of income is not established. As the appellant have established his source of income being business income, the amount offered for assessment should have been taxed under head \"Business or Profession\" and subject to regular tax. The learned appellate authority's version that all unexplained income liable to tax under section 69 is liable to be taxed under section 115 BBE is against the provisions of the Act. 4. The learned first appellate authority overlooked the settled provisions of law in this regard and held that the order passed under section 143 (3) read with section 147 is correct and there is no mistake apparent from record as submitted by the appellant, without even looking into the provisions of finance Act 2016, read with CBDT.F. No:370142/20/2016/TPZ and Circular No: 3/2017 dt.20/01/2017, which were all brought into his notice vide detailed argument notes. ITA Nos.820-821/Coch/2023. Sri.Kallullathil Thazhatheveetil Nasir. 3 5. For the above and for other reasons to be adduced at the time of hearing, it is prayed that justice be done to the appellant by setting aside the order appealed against. 3. Suffice to say, the assessee appears to have been raising its grievance before both the lower authorities action making addition u/s.69 unexplained investment r.w.s. 154 of the Act in the course of assessment dated 30th December, 2018. Learned DR submits that the assessee’s impugned rectification u/s.154 of the Act indeed raises debatable questions as per TS Balram, ITO vs. Volkart Brothers [1971] 82 ITR 50 (SC). 4. We find merit in the Revenue’s instant first and foremost legal objection contesting the assessee’s rectification in very terms. We are of the considered view that the proper course for the assessee is to invoke sec.246A r.e.s. 250 and 251 regular appeal mechanism before the CIT(A) than that of rectification route herein u/s.154 of the Act. We accordingly reject the assessee’s instant appeal with the liberty to follow alternative remedy as per law. This first and foremost appeal ITA No.820/Coch/2023 is dismissed. 5. Same order to follow in assessee’s latter appeal ITA No.821/Coch/2023 since raising identical substantive grounds. Ordered accordingly. ITA Nos.820-821/Coch/2023. Sri.Kallullathil Thazhatheveetil Nasir. 4 6. These assessee’s twin appeals ITA Nos.820 & 821/ Coch/2023 are dismissed in above terms. A copy of this common order be placed in the respective case files. Order pronounced in the open court on this day 6th of November, 2024. Sd/- (Amarjit Singh) Sd/- (Satbeer Singh Godara) ACCOUNTANT MEMBER JUDICIAL MEMBER Cochin ; Dated : 6th November, 2024. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT Concerned. 4. The DR, ITAT, Cochin. 5. Guard File. Asst.Registrar/ITAT, Cochin "