Sri.K.P. Ummer, Pattambi V. The DCIT, Trichur

MA 28/COCH/2015

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6415 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 9 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: DIYVA RAVINDRAN
• Keywords: Agreed addition
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., JM M.P. NO . 28/COCH/2015 (ARISING OUT OF M.P. 23/COCH/2014 IN ITA NO. 195/C OCH/2011 ) ASSESSMENT YEAR : 2007 - 08 SHRI K.P. UMMER, PROP. M/S. STAR RE-ROLLING MILL, KALLADIPATTA, PATTAMBI. [PAN:AAFPU 8060P] VS. THE DEPUTY COMMISSI ONER OF INCOME-TAX, CENTRAL CIRCLE, TRICHUR. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) ASSESSEE BY SMT. DIYVA RAVINDRAN ADV. REVENUE BY SHRI A. DHANARAJ, SR. DR DATE OF HEARING 23 / 0 3 /2018 DATE OF PRONOUNCEMENT 02 / 0 4 /2018 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SE EKS RECTIFICATION OF PARA 3 OF TRIBUNAL ORDER IN M.A. NO. 23/COCH/2014 DATED 04/07 /2014. 2. IN THIS CASE, THE ASSESSEE CAME IN APPEAL BEFO RE THIS TRIBUNAL IN ITA NO. 195/COCH/2011. THE TRIBUNAL DISPOSED OF THIS APPEAL ALONGWITH OTHER APPEALS IN M.P. NO. 28/COCH/2015 2 ORDER IN ITA NOS. 190-196/COCH/2011 DATED 30/11/201 2. IN ITA NO. 195/COCH/2011, THE ASSESSEE HAS RAISED GROUND NO. 1 0 AS FOLLOWS: THE ADDITION OF RS.35 LAKHS BEING THE AMOUNT RECEI VED FROM SHRI SATHAR, CHAVAKKAD IS WITHOUT JUSTIFICATION. THE LOWER AUTH ORITIES HAVE WRONGLY ASSUMED THE AMOUNT RECEIVED AS LOAN WHEREAS THE AMO UNT RELATED TO PAYMENT OF ADVANCE TOWARDS PRICE OF PROPERTY WHICH WAS AGREED TO BE SOLD IN HIS FAVOUR. 3. ACCORDING TO THE ASSESSEE THIS GROUND WAS NOT A T ALL CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL IN ITA NO. 1 95/COCH/2011. HENCE THE ASSESSEE FILED M.P. NO. 23/COCH/2014 STATING AS FOL LOWS: 1) THE PETITIONER SUBMITTED M.P. NO.23/COCH/2014 DA TED 19 TH DECEMBER 2013 IN THE ABOVE ORDER IN ITA NO. 195/COCH/2011 FO R THE ASSESSMENT YEAR 2007-08, WHICH WAS DISPOSED OF BY ORDER DATED 4 TH JULY 2014. THE MISCELLANEOUS PETITION WAS DISMISSED. 2) IN PARA 3 OF THE ABOVE ORDER, THIS HONBLE TRIBU NAL DEALT WITH THE CONTENTION OF THE LD. DR TO A LETTER WRITTEN BY TH E ASSESSEE ON 5.5.2014. THE SUBMISSION OF THE LD. DR IS THAT THE ASSESSEE H AD TAKEN THIS GROUND BEFORE THE CIT(A) ALSO, THAT HOWEVER THE ASSESSEE A GREED FOR THE ADDITION BEFORE THE CIT(A), THAT SINCE THE ASSESSEE AGREED F OR THE ADDITION BEFORE THE CIT(A), THE SAME CANNOT BE RE AGITATED BEFORE T HIS TRIBUNAL. 3) IT IS RESPECTFULLY SUBMITTED THAT WHAT IS STATED BY THE LD. DR IS NOT CORRECT. IT IS SUBMITTED THAT THE LETTER DATED 5.5 .2014 IS NOT THE LETTER WRITTEN BY THE ASSESSEE, BUT IT IS A REPORT MADE BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1, PALAKKAD TO T HE SENIOR AUTHORIZED REPRESENTATIVE. A COPY OF THE LETTER IS ALREADY ON RECORD AND COPY THEREOF IS PRODUCED HEREWITH. SECONDLY, THE ASSESSEE HAS N OT AGREED FOR ANY ADDITION OF RS. 35 LAKHS AS STATED BY LD. DR. THIS IS EVIDENT FROM THE FACTS OF THE CASE ON RECORD, THE SUMMARY OF WHICH I S AS UNDER: IN THE ASSESSMENT ORDER OF THE APPELLANT, THE ASSE SSING OFFICER HAS NOT MADE ANY ADDITION OF RS.35 LAKHS. THE ADDI TION OF RS.35 LAKHS WAS MADE IN THE ASSESSMENT OF M/S. SOUTH MALA BAR STEELS & ALLOYS PVT. LTD. M.P. NO. 28/COCH/2015 3 THE SOURCE OF THE CREDIT WAS EXPLAINED AS THE AMOUN T RECEIVED FROM SHRI SATHAR BY WAY OF ADVANCE FOR SALE OF AN ITEM OF IMM OVABLE PROPERTY BELONGING TO THE ASSESSEE, SHRI K.P. UMMER. A CONF IRMATION LETTER WAS PRODUCED BEFORE THE ASSESSING OFFICER IN THE COURSE OF THE ASSESSMENT OF M/S. SOUTH MALABAR STEELS & ALLOYS PVT. LTD. IN TH E APPEAL OF THE COMPANY, THE CIT(A) HELD THE VIEW THAT THE SUM OF R S.35 LAKHS WAS NOT SATISFACTORILY EXPLAINED AND THAT THE PROVISION OF SECTION 68 WAS ATTRACTED. THE CIT(A) HAS ALSO GIVEN A DIRECTION TO THE ASSESS ING OFFICER TO MAKE THE ADDITION OF RS.35 LAKHS FOR THE ASSESSMENT YEAR 200 7-08 IN THE ASSESSMENT OF THE ASSESSEE (K.P. UMMER) AND TO ENHA NCE THE INCOME TO THAT EXTENT. 4. THESE TWO FINDINGS OF THE CIT(A) ARE CHALLENGED BY THE ASSESSEE IN GROUND NO. 10 MEMORANDUM OF APPEAL BEFORE THIS HON BLE TRIBUNAL. GROUND NO. 10 IS RE PRODUCED AS BELOW: THE ADDITION OF RS.35 LAKHS BEING THE AMOUNT RECEI VED FROM SHRI SATHAR, CHAVAKKAD IS WITHOUT JUSTIFICATION. THE LO WER AUTHORITIES HAVE WRONGLY ASSUMED THE AMOUNT RECEIVED AS LOAN WHEREAS THE AMOUNT RELATED TO PAYMENT OF ADVANCE TOWARDS PRICE OF PROP ERTY WHICH WAS AGREED TO BE SOLD IN HIS FAVOUR. THE ASSESSEE CHALLENGED THE ADDITION IN HIS APPEAL IN GROUND NO. 10 REPRODUCED ABOVE. 5. THESE FACTS HAVE NOT BEEN PROPERTY ADVERTED TO OR CONSIDERED BY THE HONBLE TRIBUNAL IN THE MISCELLANEOUS PETITION. MO REOVER, THIS HONBLE TRIBUNAL ALSO ERRONEOUSLY ASSUMED THAT THE LETTER D ATED 5.5.2014 WAS WRITTEN BY THE ASSESSEE AND CAME TO THE CONCLUSION. THE ASSESSEE HAD NO OCCASION TO AGITATE THE ISSUE BEFORE THE CIT(A) IN AS MUCH AS THERE IS NO SUCH ADDITION IN THE ASSESSMENT ORDER. THE CIT(A), AS SUBMITTED ABOVE, ENHANCED THE ASSESSMENT IN THE APPEAL TO THE EXTENT OF RS.35 LAKHS ON THE GROUNDS STATED ABOVE. 6. IN THE FACTS AND CIRCUMSTANCES, THIS HONBLE TRI BUNAL SHOULD HAVE CONSIDERED GROUND NO. 10 AND RENDERED A JUDGMENT, W HICH WAS NOT DONE. HAVING REGARD TO THE ABOVE FACTS AND CIRCUMST ANCES OF THE CASE AND THE GROUNDS URGED IN THE M.P. NO. 23/C/2014 DATED 1 9 TH DECEMBER 2013, IT IS HUMBLY PRAYED THAT THIS HONBLE TRIBUNAL MAY KINDLY BE PLEASED TO RECTIFY THE MISTAKE APPARENT FROM RECORD AS POINTED OUT ABOVE AND GRANT RELIEFS AND RENDER JUSTICE. M.P. NO. 28/COCH/2015 4 4. THE TRIBUNAL DISPOSED OF THIS M.P. BY OBSERVI NG AS FOLLOWS: 3. ON THE CONTRARY, SMT. LATHA V KUMAR, THE LD. DR SUBMITTED THAT NO DOUBT, THE ASSESSEE HAS TAKEN A SPECIFIC GROUND WIT H REGARD TO ADDITION OF RS.35 LAKHS. REFERRING TO THE COPY OF THE LETTER WR ITTEN BY THE ASSESSEE ON 05-05-2014, THE LD. DR SUBMITTED THAT WITH REGARD T O ADDITION OF RS.35 LAKHS, THE ASSESSEE TAKEN THIS GROUND BEFORE THE CI T(A) ALSO. HOWEVER, THE ASSESSEE AGREED FOR ADDITION BEFORE THE CIT(A). SIN CE THE ASSESSEE AGREED FOR ADDITION BEFORE THE CIT(A), THE SAME ISSUE CANN OT BE REAGITATED BEFORE THIS TRIBUNAL, THEREFORE, ACCORDING TO THE LD. DR, IT CANNOT BE SAID THAT THE GROUND RAISED BY THE ASSESSEE WAS NOT DISPOSED OF. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISP UTE THAT THE ASSESSEE RAISED THE VERY SAME ISSUE WITH REGARD TO ADDITION OF RS.3 5 LAKHS BEFORE THE CIT(A). IN THE PROCEEDINGS BEFORE THE CIT(A), THE ASSESSEE AGREED FOR ADDITION OF RS.35 LAKHS. ONCE THE ASSESSEE AGREED FOR ADDITION OF RS.35 LAKHS, THE SAME CANNOT BE REAGITATED BEFORE THIS TRIBUNAL. THE ASSE SSEE WITHOUT DISCLOSING THESE FACTS FILED THE PRESENT MISCELLANEOUS APPLICA TION AS IF THIS TRIBUNAL DID NOT DISPOSE OF THE GROUND. THE GROUND RAISED BY THE ASSESSEE IN GROUND NO. 10 WITH REGARD TO ADDITION OF RS.35 LAKHS CANNOT BE REAGITATED. THEREFORE, IT DEEMED TO BE REJECTED. EVEN THOUGH THIS GROUND HAS NOT BEEN SPECIFICALLY DISCUSSED IN THE ORDER OF THIS TRIBUNAL, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT IN VIEW OF THE AGREED ADDITION MADE BY THE LOWER AUTHORITY THIS GROUND CANNOT BE REAGITATED. THEREFORE, THIS TRIBU NAL DO NOT FIND ANY ERROR, MUCH LESS, A PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THE APPLICATION OF THE ASSESSEE IS DISMISSED AS DEVOID OF MERIT. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FIL ED BY THE ASSESSEE STANDS DISMISSED. 5. NOW THE CONTENTION OF THE LD. AR IS THAT IN P ARA 3 ABOVE, IT WAS MENTIONED THAT THE LETTER DATED 5.5.2014 WAS WRITTEN BY THE A SSESSEE INSTEAD OF MENTIONING THAT IT WAS WRITTEN BY THE ASSESSING OFF ICER ON WHICH THE LD. DR PLACED RELIANCE. NOW BEFORE US, THE LD. AR SOUGHT RECTIFICATION OF THAT PORTION OF THE ABOVE ORDER. M.P. NO. 28/COCH/2015 5 6. THE LD. DR RAISED NO OBJECTION TO THIS SUBMI SSION OF THE LD. AR. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE LETTER DATED 05/05/2014 WRITTEN BY THE ASSESSING OFFICER TO THE AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT. ACCORDINGLY, WE FIND THAT THERE IS ERROR IN MENTIONING THAT THE ASSESSEE HAS WRITTEN THE LETTER. ACCORDINGLY, WE R E-DRAFT PARA 3 AS FOLLOWS AND IT IS TO BE READ ACCORDINGLY: 3. ON THE CONTRARY, SMT. LATHA V KUMAR, THE LD. DR SUBMITTED THAT NO DOUBT, THE ASSESSEE HAS TAKEN A SPECIFIC GROUND WIT H REGARD TO ADDITION OF RS.35 LAKHS. REFERRING TO THE COPY OF THE LETTE R WRITTEN BY THE ASSESSING OFFICER ON 05.05.2014, THE LD. DR SUBMITT ED THAT WITH REGARD TO ADDITION OF RS.35 LAKHS, THE ASSESSEE TAKEN THIS GROUND BEFORE THE CIT(A). SINCE THE ASSESSEE AGREED FOR ADDITION BEF ORE THE CIT(A), THE SAME ISSUE CANNOT BE REAGITATED BEFORE THIS TRIBUNA L. THEREFORE, ACCORDING TO THE LD. DR, IT CANNOT BE SAID THAT THE GROUND RAISED BY THE ASSESSEE WAS NOT DISPOSED OF. THERE WERE NO OTHER CHANGES IN THE ABOVE MENTIONED ORDER IN M.A. NO.23/COCH/2014 DATED 4.7.2014. 8. IN THE RESULT, THE MISCELLANEOUS PETITION FILE D BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 02/04/2018. SD/- SD/- (GEORGE GEORGE K.) (CHAND RA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 02 APRIL, 2018 GJ M.P. NO. 28/COCH/2015 6 COPY TO: 1. SHRI K.P. UMMER, PROP. M/S. STAR RE-ROLLING MILL , KALLADIPATTA, PATTAMBI. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE, TRICHUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I,KOCHI. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRA R) I.T.A.T. , COCHIN