Kerala Nut food Co., Kollam V. DCIT, Kollam

MA 38/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0178 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 01-03-2013
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: A S NARAYANAMOORTHY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NOS. 37 & 38/COCH/2013 (ARG. OUT OF I.T.A. NOS. 174 & 175/COCH/2010 ASSESSMENT YEARS : 2002-03 & 2003-04 KERALA NUT FOOD CO. PARAMESWAR NAGAR, KOLLAM-691 001 [PAN:AADFK 5087V] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI A.S. NARAYANAMOORTHY, CA REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 19/04/2013 DATE OF PRONOUNCEMENT 26/04/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS MOVED THESE MISCELLANEOUS APPLICA TIONS WITH THE PLEA THAT THE FINDING GIVEN IN THE BODY OF THE COMMON ORDER DATED 17-02-2012 PASSED BY THE DIVISION BENCH OF THE TRIBUNAL AND THE FINAL CONCLUSION GIVE N THEREIN WITH REGARD TO THE RESULT OF APPEALS ARE CONTRADICTORY TO EACH OTHER. 2. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE DIVISION BENCH OF THE TRIBUNAL HAS PASSED ORDERS TO GIVE EFFECT TO THE DE CISION OF THE THIRD MEMBER IN THE ABOVE CITED CASES. IN THE PARAGRAPH 2 OF THE ORDER , THE BENCH HAS OBSERVED THAT THE APPEAL OF THE ASSESSEE ON THE ISSUE REFERRED TO THE LD THIRD MEMBER STANDS ALLOWED. HOWEVER, IN THE CONCLUDING PARAGRAPH, THE TRIBUNAL HAS OBSERVED THAT THE REVENUES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURP OSES. ACCORDINGLY, THE LD COUNSEL SUBMITTED THAT THE ABOVE SAID OBSERVATIONS ARE CONT RADICTORY TO EACH OTHER AND ACCORDINGLY PRAYED FOR SUITABLE CORRECTION. M.P. NOS.37 & 38/COCH/2013 2 3. ON THE CONTRARY, THE LD D.R SUBMITTED THAT T HE LD THIRD MEMBER HAS SPECIFICALLY OBSERVED IN PARAGRAPH 10 OF HIS ORDER THAT THE MATT ER IS REQUIRED TO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, TH E LD D.R SUBMITTED THAT THE IMPUGNED APPEALS, BEING APPEALS PREFERRED BY THE REVENUE, HA VE TO BE TREATED AS ALLOWED, SINCE THE ISSUE REFERRED TO THE LD THIRD MEMBER WAS SET A SIDE TO THE FILE OF THE ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE RECORD. ADMITTEDLY, THE IMPUGNED APPEALS NUMBERED AS ITA 174 & 175/COCH/201 0 HAVE BEEN PREFERRED BY THE REVENUE. ADMITTEDLY, THE ISSUE, WHICH WAS CONSIDER ED BY THE LD THIRD MEMBER, WAS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. SINCE THE ISSUES CONTESTED BY THE REVENUE BEFORE THE TRIBUNAL WERE SET ASIDE TO THE FILE OF T HE ASSESSING OFFICER, THE TRIBUNAL HAS FINALLY CONCLUDED THAT THE REVENUES APPEALS ARE TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. HOWEVER, THERE IS AN ERROR IN THE OBSERVATIO N MADE BY THE TRIBUNAL IN PARAGRAPH 2 OF THE IMPUGNED ORDER. THE TRIBUNAL HAS OBSERVED T HAT THE APPEAL OF THE ASSESSEE ON THE ISSUE REFERRED TO THE LD THIRD MEMBER STANDS AL LOWED. THE IMPUGNED APPEALS, BEING THE APPEALS PREFERRED BY THE REVENUE, THERE I S AN ERROR IN THE ABOVE SAID OBSERVATIONS, WHICH NEEDS NECESSARY CORRECTION. AC CORDINGLY PARAGRAPH 2 OF ORDER DATED 17-02-2012 (REFERRED SUPRA) SHALL BE DELETED AND IN THAT PLACE, FOLLOWING PARAGRAPH SHALL BE SUBSTITUTED:- 2. THE LD. THIRD MEMBER, VIDE HIS ORDER DATED 6 TH JANUARY, 2012, AFTER HEARING THE PARTIES, CONSIDERING THE FACTS AND CIRCUMSTANCE S OF THE CASE AND FOR THE REASONS MENTIONED THEREIN, CONCURRED WITH THE PROPO SED ORDER OF LD. JM ON THE QUESTION REFERRED TO HIM. IN VIEW OF THE ABOVE, AS PER MAJORITY VIEW, THE ISSUE REFERRED TO THE LD THIRD MEMBER IS DECIDED IN FAVOU R OF THE ASSESSEE. HOWEVER, THE LD THIRD MEMBER HAS EXPRESSED THE VIEW THAT THE ISSUE REQUIRES TO BE RESTORED TO THE FILES OF THE ASSESSING OFFICER, AS THERE WAS NO DIFFERENCE OF M.P. NOS.37 & 38/COCH/2013 3 OPINION BETWEEN THE MEMBERS ON THE MATTER OF RESTOR ATION. THERE WERE OTHER GROUNDS IN THESE APPEALS, ON WHICH THERE WAS NO DIF FERENCE OF OPINION AND, THEREFORE, DECISION ON THOSE GROUNDS IN THE PROPOSE D ORDERS OF THE LD. MEMBERS REMAINS THE SAME. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED ACCORDINGLY ON 26-04-20 13. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 26TH APRIL, 2013 GJ COPY TO: 1. KERALA NUT FOOD CO. PARAMESWAR NAGAR, KOLLAM-691 001 . THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, TRIVA NDRUM. 4.THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN M.P. NOS.37 & 38/COCH/2013 4