K.P.Mohammed kutty Haji, Malappuram V. DCIT, Trichur

MA 22/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0185 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 27-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA

Judgement Text

1 MP NO. 18 TO 24/COCH/2013 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.18, 19, 20, 21, 22, 23 & 24/COCH/2013 (ARISING OUT OF I.T.A NOS.215 TO 221/COCH/2011) (ASSESSMENT YEARS 2002-03 TO 2008-09) K.P. MOHAMMED KUTTY HAJI VS DY.CIT, CENT.CIR PROP SUDI STEELS THRISSUR MANJULANGAD, PATTAMBI PALAKKAD DIST PAN : ABEPH5923L (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SHAJI POULOSE RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 22-03-2013 DATE OF PRONOUNCEMENT : 05-04-2013 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE MISCELLANEOUS PETITIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DAT ED 16-11-2012. 2 MP NO. 18 TO 24/COCH/2013 2. SHRI SHAJI POULOSE, THE LD.REPRESENTATIVE FOR TH E TAXPAYER SUBMITTED THAT THIS TRIBUNAL PROCEEDED ON THE FOOTING THAT TH E TAXPAYER IS ENGAGED IN THE BUSINESS OF GOLD JEWELLERY. IN FACT, ACCORDING TO THE LD.REPRESENTATIVE, THE TAXPAYER IS ENGAGED IN SALE OF CEMENT, PAINTS, TILES, SANITARY WARES, ETC. THEREFORE, THIS TRIBUNAL ASSUMED THE FACTS INCORREC TLY WHILE PASSING THE ORDER. THE LD.REPRESENTATIVE FURTHER SUBMITTED THA T THE DISTINCTION BROUGHT OUT ABOUT THE PENDING ASSESSMENT AND THE COMPLETED ASSESSMENT WAS NOT DISCUSSED AT ALL. THE LD.REPRESENTATIVE FURTHER SU BMITTED THAT THE VLAUATION OFFICER HAS ADOPTED THE CENTRAL PWD RATE INSTEAD OF STATE PWD RATE. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE JURISD ICTIONAL HIGH COURT JUDGMENT WAS OMITTED TO BRING TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING. THE LD.REPRESENTATIVE FURTHER SUBMITTED T HAT THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF D R SASIKUMARS IN ITA NO.252 TO 257/COCH/2011 WAS ALSO OMITTED TO BRING T O THE NOTICE OF THE BENCH AT THE TIME OF HEARING. ACCORDING TO THE LD. REPRESENTATIVE, EVEN THOUGH THE DECISION OF THE CO-ORDINATE BENCH OF THI S TRIBUNAL AND THE DECISION OF THE JURISDICTIONAL HIGH COURT WAS NOT B ROUGHT TO THE NOTICE OF THE BENCH THE TRIBUNAL OUGHT TO HAVE CONSIDERED THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT AND THE DECISION OF THE C O-ORDINATE BENCH OF THIS 3 MP NO. 18 TO 24/COCH/2013 TRIBUNAL AS FOUND BY THE APEX COURT IN HONDA SIEL P OWER PRODUCTS LTD VS CIT [2007] 295 ITR 466 (SC). ACCORDING TO THE LD.R EPRESENTATIVE, SINCE THERE IS A FUNDAMENTAL ERROR WITH REGARD TO THE NATURE OF THE BUSINESS, THE ORDER MAY BE RECALLED. WE HAVE HEARD THE LD.DR, SMT. S V IJAYAPRABHA ALSO. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF THE ASSESSING OFFICER IT IS OBVIOUS THAT THE TAXPAYER IS ENGAGED HIMSELF IN THE BUSINESS OF BUILDING MATERIAL AS A WHOLESALE AND RETAIL DEALER. THIS TRIBUNAL IN THE ORDER PROCEEDED ON THE FOOTING THAT THE TAXPAYER IS ENGAGED IN SALE OF JEWELLERY ON ESTIMATE BASIS. ONCE THE NATURE OF TH E BUSINESS OF THE TAXPAYER WAS MISCONCIEVED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CONSEQUENTIAL ERROR IS CREPT IN THE ORDER WHICH NEEDS TO BE RECTIFIED. THIS TRIBUNAL BEING THE FINAL FACTS FINDING AUTHORI TY, THE FACTS OF THE CASE WITH REGARD TO THE NATURE OF THE BUSINESS HAS TO BE BROUGHT ON RECORD CORRECTLY. OTHERWISE, THE HIGHER FORUM MAY NOT BE ABLE TO APPRECIATE THE GRIEVANCE OF BOTH THE PARTIES. OBVIOUSLY, THIS TRI BUNAL PROCEEDED ON THE FOOTING THAT THE TAXPAYER IS ENGAGED IN THE BUSINES S OF JEWELLERY AND IT IS A TRADE PRACTICE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN 4 MP NO. 18 TO 24/COCH/2013 ORDER TO SET THE FACTS CORRECTLY IN THE ORDER OF TH E TRIBUNAL, THE ENTIRE ORDER NEEDS TO BE RECALLED. THE WRONG ASSUMPTION OF FACT S WITH REGARD TO THE NATURE OF BUSINESS OF THE TAXPAYER MIGHT HAVE RESUL TED IN A WRONG CONCLUSION. THEREFORE, TO SET THE FACTS CORRECTLY ON RECORD, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER OF THIS TRIBUNAL NEEDS TO BE RECALLED. ACCORDINGLY, THE ORDER OF THIS TRIBUNAL DATED 16-11 -2012 IS HEREBY RECALLED AND ALL THE APPEALS OF THE TAXPAYER IN ITA NOS.215 TO 221/COCH/2011 ARE RESTORED ON THE FILE OF THIS TRIBUNAL. THE REGISTR Y IS DIRECTED TO POST THE APPEALS FOR FINAL DISPOSAL ON 13-05-2013. 4. IN THE RESULT, THE MISCELLANEOUS PETITIONS OF TH E TAXPAYER ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05 TH APRIL, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 05 TH MARCH, 2013 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