Smt.Jalaja Nair, Trivandrum V. The ADIT(Inv), Trivandrum

MA 22/COCH/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0926 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2018
• Assessment Year: 2004-2005
• Appeal Filed On: 18-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: T M SREEDHARAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJAR I, AM & SHRI GEORGE GEORGE K, JM M A NO. 22 /COCH/201 8 : ASST.YEAR 200 4 - 200 5 (ARISING OUT OF ITA NO. 257 /COCH/20 17 ) M A NO. 23 /COCH/201 8 : ASST.YEAR 2005 - 2006 (ARISING OUT OF ITA NO.258/COCH/2017) M A NO. 24 /COCH/201 8 : ASST.YEAR 2007 - 2008 (ARISING OUT OF ITA NO.259/COCH/2017) SMT.JALAJA NAIR MOHANAM TC 55/294, KAIMANAM TRIVANDRUM. PAN : ANBPJ8795P. VS. THE ASST.COMMISSIONER OF INCOME - TAX (INV.) TRIVANDRUM. (APPELLANT) (RESPONDENT) APPLICANT BY : SRI.T.M.SREEDHARAN RESPONDENT BY : SMT.A.S.BINDHU DATE OF HEARING : 07 .09.2018 DATE OF PRONOUNCEMENT : 07 .09.2018 O R D E R PER GEORGE GEORGE K., JM THESE MISCELLANEOUS APPLICATION S AT THE INSTANCE OF THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE ITAT DATED 31 ST AUGUST, 2017 ARISING OUT OF ITA NOS.257 TO 259/COCH/2015. 2. IN THE MA, IT IS STATED THAT THE TRIBUNAL HAD DISPOSED OFF THE ABOVE MENTIONED THREE APPEALS BY A COMMON ORDER DATED 31 ST AUGUST, 2017 ALONG WITH OTHER CONNECTED APPEALS VIZ., M A NO S . 22 TO 24 / COCH /201 8 . SMT.JALAJA NAIR . 2 ITA NOS.7 TO 13/COCH/2015 FOR A.YS 2002 - 2003 TO 2008 - 2009 IN CASE OF SRI.K.NANDAKUMAR AND ITA NOS.14 TO 20/COCH/2015 FOR A.YS 2002 - 2003 TO 2008 - 2009 IN CASE OF SMT.REMY NANDAKUMAR. IT WAS FURTHER STATED IN THE MA THAT , A COMBINED READING OF PARA 10 AND 12 OF THE IMPUGNED ORDER WOULD SHOW THAT THE ISSUE RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATION IS THE ADDITIONAL GROUND ON THE LEGAL ISSUE OF VALIDITY OF SEARCH PROCEEDINGS U/S 153C, BUT THERE IS NO SPECIFIC FINDING OR DIRECTION THAT THE ADJUDICATION OF OTHER ISSUES ON MERITS WERE ALSO RESTORED TO THE FILE OF THE CIT(A). THEREFORE, IT WAS PRAYED IN THE MA FOR RESTORATION OF THE APPEAL S TO THE FILE OF CIT(A) ON BOTH COUNTS, VIZ., THE LEGAL VALIDITY OF THE SEARCH PROCEEDINGS AS WELL AS THE ADJUDICATION O F OTHER ISSUES ON MERITS. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS DULY HEARD. 3 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. 3.1 AS REGARDS THE ISSUE RELATING TO THE RESTORATION OF ADDITIONAL GROUND, THERE IS A MISTAKE APPARENT ON RECORD IN NOT SPECIFICALLY MENTIONING THE ADMISSION OF ADDITIONAL GROUND TO THE FILES OF THE CIT(A) FOR ADJUDICATION OF THE ISSUE , IN CASE OF SMT.JALAJA NAIR IN ITA NOS.257 TO 259/COCH/2017 . WE, THEREFORE, RECTIFY THE MISTAKE AND MAKE IT CLEAR BY INCORPORATING THE FOLLOWING LINES THAT , SINCE THE LOWER AUTHORITIES DID NOT HAD AN OCCASION TO EXAMINE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF M A NO S . 22 TO 24 / COCH /201 8 . SMT.JALAJA NAIR . 3 SEARCH PROCEEDINGS IN THE LIGHT OF CLA IM OF THE ASSESSEE, WE DEEM IT APPROPRIATE TO SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A) FOR HIS CONSIDERATION AND DIRECT HIM TO ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND ADJUDIC ATE THE ISSUE AS PER LAW, IN THE S E CASE S AS WELL. 3.2 AS RE GARDS THE PRAYER IN M . A . FOR RESTORATION TO CIT(A) FOR ADJUDICATION OF ISSUES ON MERITS, WE NOTED THAT THE LEARNED AR DID NOT MAKE SUCH A SUBMISSION IN THE COURSE OF HEARING OF M.A. MOREOVER, IN THE ITATS CONSOLIDATED ORDER DATED 31.08.2017, IN THE CASES OF SRI. K. NANDAKUMAR (ITA NO. 7 TO 13/COCH/2015) AND SMT.REMY NANDAKUMAR (ITA NOS.14 TO 20/COCH/2015), THE BENCH MENTIONS THAT ISSUES ON MERITS ARE NOT ADJUDICATED AT THIS JUNCTURE. IN THE CASE OF SMT.JALAJA NAIR, FINDING OF ITAT IN CASE OF SRI.K.NANDAKUMAR AND SMT.REMY NANDAKUMAR WAS INCORPORATED. THEREFORE, IDEALLY M.A. OUGHT TO HAVE BEEN FILED IN CASE OF SRI NANDAKUMAR AND SMT.REMY NANDAKUMAR, FOR ADJUDICATION OF THE ISSUES ON MERITS BEFORE THE CIT(A) , ESPECIALLY SINCE THE SAME COUNSEL, WHO ARGUED THESE M AS ARGUED THE ITAS BEFORE THE ITAT, WHICH RENDERED ITS CONSOLIDATED ORDER ON 31.08.2017. THE ASSESSEE, IF SHE IS AGGRIEVED BY CIT(A)S ORDER PASSED SUBSEQUENT TO THE ITAT ORDER DATED 31.08.2017 CAN FILE APPEALS TO THE ITAT RAISING ALL ISSUES RAISED IN THE ORIGINAL APPEAL BEFORE THE TRIBUNAL (I.E. ITA NOS.257 TO 259/COCH/2017 ) . IT IS ORDERED ACCORDINGLY. M A NO S . 22 TO 24 / COCH /201 8 . SMT.JALAJA NAIR . 4 4 . IN THE RESULT, THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE PARTLY ALLOWED , AS STATED ABOVE . ORDER PRONOUNCED ON THIS 07 TH DAY OF SEPTEMBER, 2018 . SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIA L MEMBER COCHIN ; DATED : 07 TH SEPTEMBER, 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), TRIVANDRUM . 4. THE CIT TRIVANDRUM . 5. THE DR, ITAT, COCHIN 6. GUARD FILE.