Dr.R.P.Patel, Kottayam V. ACIT, Kottayam

MA 12/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9357 (ITAT-COCHIN)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2012
• Assessment Year: misc
• Appeal Filed On: 19-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: K I JOHN
• Keywords: Capital receipt
• Section: 147; 148

Judgement Text

1 MA NOS.12 & 13/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NOS 12 & 13/COCH/2012 (ARISING OUT OF I.T.A NOS. 194 & 195/COCH/2005) (ASSESSMENT YEARS 1988-89 & 1989-90) DR R.P. PATEL VS A.C.I.T., INVESTIGATION CIRCL E HAHNEMAN HOUSE KOTTAYAM KOTTAYAM PAN : AEVPP8606G (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.I. JOHN RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 16-11-2012 DATE OF PRONOUNCEMENT : 30-11-2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATIONS ON THE GROUND THAT THERE ARE ERRORS IN THE ORDER OF THIS T RIBUNAL. 2. SHRI K.I. JOHN, THE LD.REPRESENTATIVE FOR THE TA XPAYER SUBMITTED THAT NO INTIMATION U/S 143(1)(A) WAS ISSUED IN THE PRESE NT CASE. REFERRING TO THE 2 MA NOS.12 & 13/COCH/2012 JUDGMENT OF THE APEX COURT IN THE CASE OF A.C.I.T VS . RAJESH JHAVERI STOCK BROKERS PVT LTD 291 ITR 500, THE LD.REPRESENTATIVE SUBMITTED THAT UNLESS AND UNTIL INTIMATION U/S 143(1)(A) WAS ISSUED THE A SSESSING OFFICER CANNOT REOPEN THE ASSESSMENTS U/S 147 OF THE ACT. WE HEAR D THE LD.DR ALSO. 3. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF TH E APEX COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS PVT LTD (SU PRA). ADMITTEDLY, THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) HAS BEEN E XPIRED. ONCE THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) FOR MAKING THE ASSESSMENT U/S 143(2) HAS BEEN EXPIRED, THEN IT ABUNDANTLY IMPLIES THAT THE A SSESSMENT PROCEEDINGS HAVE REACHED FINALITY BY OPERATION OF LAW. THEREFO RE, THE ONLY REMEDY AVAILABLE TO THE ASSESSING OFFICER TO ASSESS INCOME THAT ESCAPED THE ASSESSMENT IS TO REOPEN THE ASSESSMENT U/S 147 BY I SSUING NOTICE U/S 148 OF THE ACT. IT IS NOT IN DISPUTE THAT THE ACKNOWLEDGE MENT ISSUED BY THE DEPARTMENT FOR RECEIPT OF THE INCOME-TAX RETURN IS CONSIDERED TO BE AN INTIMATION U/S 143(1)(A) FOR ALL PRACTICAL PURPOSE. THEREFORE, THE CONTENTION OF THE LD.REPRESENTATIVE FOR THE TAXPAYER THAT INTI MATION U/S 143(1)(A) SHOULD BE ISSUED FOR INITIATING PROCEEDINGS U/S 147 OF THE ACT IS NOT CORRECT. 3 MA NOS.12 & 13/COCH/2012 HENCE, THIS TRIBUNAL DO NOT FIND ANY ERROR, MUCH LE SS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL DATED 25-01-2012. 4. THE NEXT MISTAKE POINTED OUT BY THE LD.REPRESENT ATIVE FOR THE TAXPAYER IS WITH REGARD TO SO-CALLED AGREEMENT MADE BY THE TAXPAYER BEFORE THE CIT(A). ACCORDING TO THE LD.REPRESENTAT IVE, THE TAXPAYER HAS NOT AGREED ANYTHING BEFORE THE COMMISSIONER OF INCOME-T AX(A). THE COMMISSIONER OF INCOME-TAX(A) HAS WRONGLY RECORDED THAT THE TAXPAYER CONTENDED BEFORE HIM THAT THE INCOME HAS TO BE ASSE SSED AS INCOME FROM OTHER SOURCES. THE LD.REPRESENTATIVE SUBMITTED T HAT SINCE THE TAXPAYER HAS NOT AGREED ANYTHING BEFORE THE COMMISSIONER OF INCOME-TAX(A), THE COMMISSIONER OF INCOME-TAX(A) IS NOT CORRECT IN SAY ING THAT THE TAXPAYER HAD AGREED FOR ADDITION. WHEN THE ATTENTION OF THE LD.REPRESENTATIVE FOR THE TAXPAYER WAS DRAWN TO THE PROVISIONS OF RULE 10 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963 VIS--VIS WHETHER ANY AFFIDAVIT WAS FILED BEFORE THIS TRIBUNAL TO CONTEND THAT THE PROCEEDING S WERE NOT RECORDED BY THE COMMISSIONER OF INCOME-TAX(A) CORRECTLY, THE LD .REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT NO SUCH AFFIDAVIT WAS FILED BEFORE THIS TRIBUNAL TO 4 MA NOS.12 & 13/COCH/2012 CONTEND THAT THE COMMISSIONER OF INCOME-TAX(A) HAS NOT RECORDED THE PROCEEDINGS CORRECTLY. WE HAVE HEARD THE LD.DR ALS O. 5. IN A CASE WHERE THE COMMISSIONER OF INCOME-TAX(A ) HAS NOT RECORDED THE PROCEEDINGS BEFORE HIM CORRECTLY OR RECORDED AN Y FACTS WHICH ARE NOT BORNE OUT OF THE RECORDS HAS TO BE RAISED BY THE TA XPAYER BY FILING A SWORN AFFIDAVIT BEFORE THIS TRIBUNAL. IF AN AFFIDAVIT IS FILED BEFORE THIS TRIBUNAL CONTENDING THAT THE COMMISSIONER OF INCOME-TAX(A) H AS NOT RECORDED THE FINDING OR THE PROCEEDINGS PROPERLY, THIS TRIBUNAL WOULD HAVE CALLED FOR COMMENTS FROM THE CONCERNED COMMISSIONER OF INCOME- TAX(A) TO ASCERTAIN WHAT IN FACT EMERGED DURING THE COURSE OF FIRST APP ELLATE PROCEEDINGS BEFORE HIM. IN THE ABSENCE OF ANY SUCH AFFIDAVIT F ILED AT THE TIME OF HEARING OF APPEAL, IT MAY NOT BE CORRECT TO CONTEND NOW THA T THE COMMISSIONER OF INCOME-TAX(A) HAS NOT RECORDED THE PROCEEDINGS PROP ERLY. THIS TRIBUNAL HAS TO PROCEED ON THE BASIS OF THE FACTS BROUGHT ON RECORD BY THE COMMISSIONER OF INCOME-TAX(A). IF THE TAXPAYER FEE LS THAT THE FACTS BROUGHT ON RECORD BY THE COMMISSIONER OF INCOME-TAX(A) IS N OT CORRECT, THEN IT IS NOT OPEN TO HIM TO SUBSTANTIATE THE CONTENTION BY W AY OF FILING AFFIDAVIT. AFTER DISPOSAL OF THE APPEAL THE TAXPAYER CANNOT AV ER THAT THE PROCEEDINGS 5 MA NOS.12 & 13/COCH/2012 RECORDED BY THE COMMISSIONER OF INCOME-TAX(A) OR TH IS TRIBUNAL ARE NOT CORRECT. THIS TRIBUNAL PROCEEDED ON THE BASIS OF T HE FACTS BROUGHT ON RECORD BY THE COMMISSIONER OF INCOME-TAX(A). SINCE THE FACTS BROUGHT ON RECORD BY THE COMMISSIONER OF INCOME-TAX(A) ARE NOT DISPUTED BY WAY OF FILING AFFIDAVIT, WE DO NOT FIND ANY ERROR, MUCH LE SS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL. 6. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT INT EREST ON IVPS IS NOT LIABLE FOR TAXATION SINCE IT IS A CAPITAL RECEIPT. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE SUPREME COURT HAS ALREADY DECIDE D THE ISSUE IN FAVOUR OF THE TAXPAYER IN ANOTHER CASE. ON A QUERY FROM T HE BENCH AS TO WHETHER THE JUDGMENT DELIVERED BY THE JURISDICTIONAL HIGH COU RT WHICH DECIDED THE MATTER AGAINST THE TAXPAYER WAS REVERSED BY THE APE X COURT OR NOT, THE LD.REPRESENTATIVE SUBMITTED THAT THE APPEAL FILED B Y THE TAXPAYER BEFORE THE APEX COURT IS STILL PENDING FOR DISPOSAL. SINC E THERE IS A SPECIFIC ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF THE PRE SENT TAXPAYER HIMSELF AND THE APPEAL AGAINST THE JUDGMENT OF THE HIGH COURT IS PENDING BEFORE THE SUPREME COURT ON THE VERY SAME ISSUE, IT CANNOT BE SAID THAT THERE IS AN 6 MA NOS.12 & 13/COCH/2012 ERROR IN THE ORDER OF THIS TRIBUNAL. THEREFORE, IN OUR OPINION THERE IS NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE TAXPAYER ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH NOVEMBER, 2012 PK/- COPY TO: 1. THE APPLICANT 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 7 MA NOS.12 & 13/COCH/2012 1. DATE OF DICTATION : 19-11 2. DATE OF PLACING THE DRAFT ORDER BEFORE THE MEMBER : 21-11 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.PS : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER: 5. DATE OF RETURN OF THE ORDER TO PS AFTER APPROVAL : 6. DATE OF PRONOUNCEMENT : 7. DATE ON WHICH THE FILE ALONG WITH THE ORDER SENT TO BC : 8. NO. OF PAGES OF DICTATION PADS ATTACHED TO THE FILE : 10 9. NO. OF PAGES OF DRAFT COPY OF THE ORDER ATTACHED TO THE FILE :