Sri.G.Sunilkumar, Thiruvalla V. The DCIT, Kottayam

MA 1/COCH/2014

• Counselvise Citation: [2014] 111 COUNSELVISE.COM (IT) 0499 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: K I JOHN
• Keywords: Charitable institution
• Section: 274; 251; 263

Judgement Text

1 M.P NO.146/COCH/2013 M.P.NO.01/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. NO.146/COCH/2013 & M.P.NO.01/COCH/2014 (ARISING OUT OF I.T.A NO. 257 & 258/COCH/2013) (ASSESSMENT YEARS 2006-07 & 2009-10) G SUNIL KUMAR VS THE DY.CIT, CENT.CIR. SUNEETRON AGENCIES KOTTAYAM THIRUVALLA PAN : ABQPA1789H (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.I. JOHN RESPONDENT BY : SMT. LATHA V KUMAR DATE OF HEARING : 31-01-2014 DATE OF PRONOUNCEMENT : 07-02-2014 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETIT IONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 05-09-2013. 2. SHRI K.I. JOHN, THE LD.REPRESENTATIVE FOR THE AS SESSEE SUBMITTED THAT THE TRIBUNAL FOUND THAT FAILURE OF THE ASSESSING OF FICER TO RECORD REASONS FOR THE CONCLUSIONS REACHED IN THE ASSESSMENT ORDER IS AN ERROR WHICH IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN ARR IVING AT THIS CONCLUSION, THIS 2 M.P NO.146/COCH/2013 M.P.NO.01/COCH/2014 TRIBUNAL PLACED RELIANCE ON THE JUDGMENT OF THE PUN JAB & HARYANA HIGH COURT IN CIT VS SUNIL KUMAR GOEL (2005) 274 ITR 53 (P&H) AND ALSO ON THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN FATEH C HAND CHARITABLE TRUST IN WRIT TAX NO.1629 OF 2010 JUDGMENT DATED 27-05-20 13. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING OFFICER CALLED FOR DETAILS OF THE LIC PREMIUM AND HOUSING LOAN DETAILS. THEREFORE, THE A SSESSING OFFICER NEED NOT RECORD ANY FURTHER REASONS IN THE ASSESSMENT YE AR. ACCORDING TO THE LD.REPRESENTATIVE, THE COMMISSIONERS ORDER IS NON SPEAKING AND IT DOES NOT CONTAIN ANY REASONS. THE COMMISSIONER IS EXPEC TED TO GIVE REASONS IN THE IMPUGNED ORDER. AT THE VERY SAME TIME, THE A SSESSING OFFICER IS NOT BOUND TO GIVE REASONS. THE LD.REPRESENTATIVE FURTH ER SUBMITTED THAT THIS TRIBUNAL PLACED RELIANCE ON THE ABOVE JUDGMENTS WIT HOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE ORDER OF THE TRIBUNAL NEEDS TO BE RECTIFIED. W E HEARD SMT. LATHA V KUMAR, THE LD.DR ALSO. 3. THE FIRST OBJECTION OF THE ASSESSEE IS THAT THIS TRIBUNAL PLACED RELIANCE ON THE JUDGMENT OF THE PUNJAB & HARYANA HI GH COURT, SUPREME COURT AND ALLAHABAD WITHOUT GIVING AN OPPORTUNITY T O THE ASSESSEE. THIS CONTENTION OF THE ASSESSEE IS NOT CORRECT. AT PARA GRAPH 3 OF THE ORDER, THIS TRIBUNAL CAME TO AN INDEPENDENT CONCLUSION THAT THE NON CONSIDERATION OF 3 M.P NO.146/COCH/2013 M.P.NO.01/COCH/2014 THE MATERIAL AVAILABLE ON RECORD, FAILURE OF THE AS SESSING OFFICER TO RECORD REASONS FOR THE CONCLUSION AMOUNTS TO AN ERROR WHIC H IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THIS TRIBUNAL HAS ALSO RE CORDED A FINDING THAT THE JUDICIAL / ADMINISTRATIVE ORDER SHALL CONTAIN REASO NS FOR THE CONCLUSIONS REACHED IN THE ORDER. THIS TRIBUNAL SPECIFICALLY F OUND THAT THE ASSESSING OFFICER IS BOUND TO PASS A SPEAKING ORDER BY GIVING REASONS. ACCORDINGLY, THE NON APPLICATION OF MIND TO THE MATERIAL AVAILAB LE ON RECORD IS FUND TO BE AN ERROR WITHIN THE MEANING OF SECTION 263 OF THE A CT. THIS CONCLUSION IS REACHED INDEPENDENTLY WITHOUT REFERENCE TO ANY OF T HE JUDGMENTS AS FOUND IN PARAGRAPH 3 OF THE TRIBUNAL ORDER. THEREAFTER, JUST TO INDICATE THAT A SIMILAR VIEW WAS EXPRESSED BY HIGHER FORUM, A REFER ENCE WAS MADE TO PUNJAB & HARYANA HIGH COURT, SUPREME COURT AND THE ALLAHABAD HIGH COURT JUDGMENT. THESE JUDGMENTS SUPPORT THE VIEW W HICH WAS ALREADY TAKEN BY THE TRIBUNAL. THIS TRIBUNAL IS OF THE CON SIDERED OPINION THAT RECORDING OF AN INDEPENDENT CONCLUSION AND THEREAFT ER MAKING A REFERENCE ABOUT THE JUDICIAL DECISION PRONOUNCED BY THE APEX COURT AND OTHER HIGH COURTS WOULD NOT PREJUDICE THE INTEREST OF THE ASSE SSEE IN ANY WAY. A REFERENCE TO THE DECIDED CASES AND THE PRINCIPLES L AID DOWN BY THE HIGHEST COURT OF THE COUNTRY IN THE JUDICIAL ORDER WOULD EN ABLE THE APPELLATE FORUM TO APPRECIATE THE ORDER OF THIS TRIBUNAL WHENEVER T HE ASSESSEE CHALLENGES THE ORDER OF THIS TRIBUNAL BEFORE THE HIGHEST FORUM . THEREFORE, AFTER 4 M.P NO.146/COCH/2013 M.P.NO.01/COCH/2014 REACHING AN INDEPENDENT CONCLUSION, REFERENCE TO TH E DECIDED CASES, MORE PARTICULAR, THE JUDGMENT OF THE HIGHEST COURT OF TH E COUNTRY CANNOT BE A REASON TO FIND FAULT WITH THE ORDER OF THIS TRIBUNA L. 4. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSES SING OFFICER NEED NOT GIVE REASON. THIS TRIBUNAL IS OF THE CONSIDERED OP INION THAT THE ASSESSING OFFICER IS ALSO BOUND TO GIVE REASONS FOR THE CONCL USIONS REACHED IN THE ASSESSMENT ORDER. UNDER THE SCHEME OF INCOME-TAX A CT, THE ASSESSING OFFICER HAS TO PLAY THREE DIFFERENT ROLES, VIZ. AN INVESTIGATING OFFICER TO COLLECT THE MATERIAL, A PRESENTING OFFICER ON BEHAL F OF THE DEPARTMENT AND AN ADJUDICATING AUTHORITY. IN VIEW OF THE PECULIAR ROLES ASSIGNED TO THE ASSESSING OFFICER UNDER THE SCHEME OF INCOME-TAX AC T, THE ASSESSING OFFICER HAS TO GIVE REASON IN THE ASSESSMENT ORDER FOR THE CONCLUSIONS REACHED THEREIN WHICH WILL ENABLE THE APPELLATE AUT HORITY TO APPRECIATE THE ASSESSMENT ORDER. AS FOUND BY THE APEX COURT RECOR DING REASONS, MORE PARTICULAR, IN VIEW OF THE THE ROLE PLAYED BY THE A SSESSING OFFICER WOULD MINIMIZE THE CHANCES OF ARBITRARINESS IN THE DECISI ON MAKING BESIDES GIVING CLARITY IN THE DECISION. THEREFORE, THE CON TENTION OF THE ASSESSEE THAT THE ASSESSING OFFICER NEED NOT GIVE REASON IN THE ASSESSMENT ORDER IS NOT CORRECT. MOREOVER, THE APEX COURT IN THE CASE OF APPROPRIATE AUTHORITY VS HINDUMAL BALMUKUND INVESTMENT CO.P.LTD & ORS (20 01) 251 ITR 660 5 M.P NO.146/COCH/2013 M.P.NO.01/COCH/2014 (SC) FOUND THAT A SPEAKING ORDER MUST SPEAK FOR ITS ELF AND A REFERENCE TO SHOW CAUSE NOTICE IS UNCALLED FOR. THEREFORE, THE ASSESSMENT ORDER SHALL SPEAK ITSELF FOR THE CONCLUSIONS REACHED THEREIN AN D A REFERENCE TO THE DETAILS CALLED FOR OR A SHOW CAUSE NOTICE ISSUED BY THE ASSESSING IS NOT CALLED FOR. 5. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THERE IS NO ERROR MUCH LESS A PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL. THE APPLICATION HAS NO MERIT AT ALL. ACCORDINGLY, THE SAME IS DISMISSED/ ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH FEBRUARY, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 07 TH FEBRUARY, 2014 PK/- COPY TO: 1. G SUNILKUMAR, SUNEETRON AGENCIES, THIRUVALLA 2. DEPUTY COMMISSIONER OF INCOME-TAX, CENT.CIR., KO TTAYAM 3. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 4. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH