M/s.Kanjirapally Hotels, Kottayam V. The ACIT, Cen-Circle-1, Ernakulam, Ernakulam

MA 04/COCH/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4731 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-03-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 07-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Keywords: Reasonable cause
• Section: 254(2); 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., J M M.P. NO S . 0 4 TO 06 /COCH /201 9 (ARSG. OUT OF I .T . A. NO S . 122 TO 124 / COCH/20 1 8 ) ( ASSESSMENT YEAR S : 20 1 2 - 13 TO 2014 - 15) M/S. KANJIRAPALLY HOTELS, KANJIRAPALLY P.O., KOTTAYAM - 686 507. [PAN:AAJFK 7653E] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCL E - 1, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) ASSESSEE BY S HRI MATHEW JOSEPH, CA REVENUE BY S MT. A.S. BINDHU, SR. DR DATE OF HEARING 22 /03/2019 DATE OF PRONOUNCEMENT 22 /03/2019 O R D E R PER CHANDRA POOJARI, ACCOUTNANT MEMBER: THESE MISCELLANEOUS APPLICATION U/S. 254(2) OF THE INCOME - TAX ACT, 1961 HAS B EEN PREFERRED BY THE ASSESSEE PRAYING FOR THE RECALLING OF THE COMMON ORDER OF THE TRIBUNAL DATED 10/09/20 18 , PASSED IN ITA NO S . 122 TO 124/ C OCH/201 8 FOR THE ASSESSMENT YEAR S 2012 - 13 TO 2014 - 15. 2. THE LD. AR VIDE THE PRESENT MISCELLANEOUS APPLICATION S SUBMITTED AS FOLLOWS: M.P. NO . 0 4 - 06 / / COCH/201 9 2 1. THE ABOVE APPEAL WAS DISPOSED OF BY THE TRIBUNAL BY ITS ORDER DATED 10/09/2018. THE APPELLANTS ABOVE NAMED BEG TO PRESENT THIS APPLICATION FOR RECTIFICATION OF CERTAIN MISTAKES WHICH ARE APPARENT FROM RECORD IN THE SAID ORDER. 2. GROUND NO. 1 I N THESE APPEALS WAS AGAINST THE ESTIMATION OF FOOD SALE AS A PERCEN TAGE OF LIQUOR SALE AND ADDING THE ENTIRE ESTIMATED SALE AMOUNT AS PROFIT WITHOUT CONSIDERING THE EXPENDITURE INCURRED FOR THE ADDITIONAL INCOME. THE TRIBUNAL HAS NOT CONSIDERED THIS GROUND, INSTEAD DISCUSSED IN DETAIL ABOUT THE GROSS PROFIT ON LIQUOR AND FINALLY REJECTED THE GROUND.(PAGE 6 OF THE ITAT ORDER) THIS GROUND HAS BEEN ELABORATED IN PAGE - 1 OF THE HEARING NOTES. THE ASSESSEE HAS REFERRED TO THE DECISION OF THIS TRIBUNAL IN THE CASE OF DEEPAK NARENDRAN IN ITA 388 TO 393/COCH/2016 (SEE PAGE 14 OF THE WRITTEN SUBMISSION) IN WHICH THE HON. ITAT HAS FIXED THE PROFIT ON ESTIMATED FOOD SALE AT 6.32 %. 3.GROUND NO.2 IN THESE APPEALS WAS AGAINST THE DISALLOWANCE OF THE CLAIM FOR UNRECORDED EXPENSES ON SALARY ETC BASED ON ACTUAL RECORDS MAINTAINED BY THE ASSESSEE. THE ASSESSEE IN PAGE - 2 OF HIS WRITTEN SUBMISSION HAS DETAILED THE ISSUE AND HAS REFERRED TO THE RECENT DECISION OF ACIT CENTRAL CIRCLE IN THE CASE OF M/S ARYA INTERNATIONAL ( PAGE 31 AND 34 OF THE WRITTEN SUBMISSION) . IN THE CASE OF HOTEL MAR EENA ALSO THE CIT(A) HAS ALLOWED THE EXTRA SALARY CLAIMED (PAGE 26&27 OF THE WRITTEN SUBMISSION). THE ASSESSEE BY MISTAKE HAS REFERRED DEEPAK NARENDRAN IN PAGE 3 OF THE WRITTEN SUBMISSION. THE HON. TRIBUNAL HAS DIRECTED THE CIT(A) TO EXAMINE THE ISSUE A FRESH ON THE BASIS OF THE DECISION IN DEEPAK NARENDRAN CASE INSTEAD OF HOTEL MAREENA AND ARYA INTERNATIONAL. IT IS RESPECTFULLY SUBMITTED THAT THE TRIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS ORDER DATED 10/09/2018 TO RECTIFY THE AFORESAID OMISSIONS WHIC H IS APPARENT ON RECORD. M.P. NO . 0 4 - 06 / / COCH/201 9 3 3. THE LD. DR FAIRLY CONCEDED THAT THE TRIBUNAL HAD COMMITTED ERROR IN NOT ADJUDICATING THE ABOVE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. ADMITTEDLY, THE T RIBUNAL HAS NOT CONSIDERED THE ABOVE GROUNDS RAISED BY THE ASSESSEE IN ITS ORDER. HENCE, THERE IS ERROR COMMITTED IN THE ORDER OF THE TRIBUNAL WHICH IS APPARENT FROM RECORD. ACCORDINGLY, THE ORDER OF THE TRIBUNAL DATED 10/09/2018 IS RECALLED . THE REGISTR Y IS DIRECTED TO FIX THESE APPEALS FOR FRESH HEARING ON 4 TH APRIL, 2019. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THE REGISTRY NEED NOT SEND SEPARATE NOTICE OF HEARING TO THEM, I.E., THE PRESENT ORDER S HALL ALSO BE CONSTRUED AS NOTICE OF HEARING, WHICH MAY BE TAKEN NOTE OF BY BOTH THE PARTIES. WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE THE TRIBUNAL ON THE DATE OF HEARING AND NOT TO SEEK ANY ADJOURNMENT WITHOUT REASONABLE CAUSE. 5 . IN THE RESULT, THE M ISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2019 SD/ - SD/ - ( GEORGE GEORGE K. ) ( CHANDRA POOJARI ) JUDICIAL MEMBE R ACCOUNTANT MEMBER PLACE: KOCHI DATED: 22 ND MARCH, 2019 M.P. NO . 0 4 - 06 / / COCH/201 9 4 GJ COPY TO: 1 . M/S. KANJIRAPALLY HOTELS, KANJIRAPALLY P.O., KOTTAYAM - 686 507. 2. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. 3. THE COMMISSIONER OF INCOME - TAX(APPEALS), KOTTAYAM. 4 . T HE C OMMISSIONER OF INCOME - TAX , CENTRAL, KOCHI . 5 . D. R., I.T.A.T., COCHIN BENCH, COCHIN. 6 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN