M/s Kalliyath Wire Distributors, Calicut V. ACIT, Calicut

MA 48/COCH/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5239 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 1991-1992
• Appeal Filed On: 09-08-2010
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM M.P. NO. 48/COCH/2010 (ASG. OUT OF I.T.A. NO. 535/COCH/2008 ASSESSMENT YEAR : 1991-92 M/S. KALLIYATH WIRE DISTRIBUTORS, OPP. R.K.MISSION HIGH SCHOOL, PANNIYANKARA, CALICUT [PAN: ACJPA 3890M] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, INVESTIGATION, CIRCLE- 1, CALICUT. (ASSESSEE-APPLICANT) (REVENUE -RESPONDENT) OR D E R PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE D IRECTED AGAINST THE ORDER OF THE TRIBUNAL IN ITS CASE FOR THE ASSESSMENT YEAR (A.Y.) 1991-92 DATED 31.5.2010. 2. THE MP RAISES THREE GROUNDS, EACH OF WHICH WE SH ALL TAKE UP IN SERIATIM. THE ASSESSEES FIRST CONTENTION IS THAT ITS GROUND NO. 10 BEFORE THE TRIBUNAL, AGITATING THE CONFIRMATION OF THE ADDITION IN THE SUM OF RS. 6,66 ,030/-, STANDS DISMISSED BY IT VIDE PARA 17 OF ITS ORDER ON THE PREMISE THAT THE SAID GROUND WAS NOT MAINTAINABLE AS IT DID NOT ARISE OUT OF THE ORDER BY THE FIRST APPELLATE AUTHORITY. REFERENCE STANDS MADE ALSO TO PARA 3 OF THE IMPUGNED ORDER IN THIS RESPECT. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. THE MATTER HAS BEEN IN FACT DEALT WITH BY THE LD. CIT(A) VIDE PARA 4 OF HIS ORDER, AS POINTED OUT BY THE ASSESSEE PER ITS PRESENT APPLICATION, AS ALSO BY TH E LD. AR DURING THE HEARING, ALSO READING THE CONTENTS THEREOF. IN VIEW OF THE SAME, THERE I S CLEARLY A MISTAKE BY THE TRIBUNAL IN STATING THAT THE SAID GROUND HAD NOT BEEN DISPOSED OF BY THE LD. CIT(A), AND DECIDING THE GROUND BEFORE IT ON THAT BASIS. WE, THEREFORE, DIR ECT THE RECALL OF THE ASSESSEES APPEAL FOR ASSESSEE BY SHRI C.B.M. WARRIER, CA-AR REVENUE BY DR. BABU JOSEPH, SR. DR M.P.NO.48/COCH./2010 2 ADJUDICATION OF THE SAID GROUND, TO WHICH EXTENT ON LY THE RESTORATION OF THE ASSESSEES APPEAL WOULD BE LIMITED TO. WE DECIDE ACCORDINGLY. 4. THE NEXT GROUND OF THE ASSESSEES APPLICATION RE LATES TO ITS GROUND NO. 5 BEFORE THE TRIBUNAL, AND WHICH HAS BEEN DEALT BY THE SUCCE SSIVE APPELLATE AUTHORITIES VIDE PARA 3 AND PARAS 11 & 12 OF THEIR ORDERS RESPECTIVELY, AND WHICH STANDS ALSO SUBSTANTIALLY REPRODUCED BY THE ASSESSEE IN ITS APPLICATION. AD VERTING THERETO, IT WAS SUBMITTED BY THE LD. AR THAT WHILE THE LD. CIT(A) HAS DECIDED THE SA ME BY NOT ADMITTING THE ADDITIONAL EVIDENCE SOUGHT TO BE PLACED BY THE ASSESSEE BEFORE HIM, IN VIEW OF THE CONDITIONS OF RULE 46A HAVING NOT BEEN MET BY THE ASSESSEE, THE T RIBUNAL HAS DECIDED THE ISSUE ON THE BASIS THAT THE ISSUE STANDS SATISFACTORILY AND DULY CONSIDERED BY THE AUTHORITIES BELOW. THAT IS, WHILE THE LD. CIT(A) DID NOT CONSIDER THE ASSESSEES REPRESENTATION/S ON THE GROUND OF IT BEING AN ADDITIONAL EVIDENCE/S, WHICH IS NOT ADMISSIBLE AS PER THE RULES, THE TRIBUNAL DECIDES THE MATTER BY HOLDING THAT THE MAT TER STANDS DULY CONSIDERED BY THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE GROUND RAISED BY THE ASSESSEE-PETITIONER BEFORE THE TRIBUNAL READ S AS UNDER: ` 5. THE SALES OF SCRAP FROM 1-4-1990 TO 27-12-1990 IS ADOPTED AT 3967.321 MT. THIS SALE INCLUDES THE SALES TO ENNAR STEELS, ANDHRA PRADESH. THE SUPPLIES OF SCRAP MATERIALS ARE DIRECTLY MADE TO ENNAR STEELS, ANDHRA PRADESH A ND THE STOCK WAS NOT BROUGHT INTO THE STOCK REGISTER ON THE RECEIPT SIDE. SO THIS QUA NTITY OF STEEL SCRAP IS TO BE INCREASED TO THE STOCK AS PER THE SEIZED STOCK BOOK . THE SAME, AS APPARENT, IS A STATEMENT OF ITS CASE. IT IS THIS GROUND OR GRIEVANCE THAT THE TRIBUNAL WAS CALLED UPON BY THE ASSESSEE TO ANSWER IN ITS APPEAL. ON THE MERITS OF ITS CASE, THE ASSESSEE HAD ADDUCED CERTAIN MATERIALS BEFORE T HE LD. FIRST APPELLATE AUTHORITY. THE SAME WERE NOT CONSIDERED BY IT, AS THE SAME DID NOT MEET THE REQUIREMENTS OF THE RELEVANT RULE, I.E., R. 46A. HE, THEREFORE, PROCEEDED IN THE MATTER BY ADMITTEDLY NOT CONSIDERING THE SAID EVIDENCE/S WHICH THE ASSESSEE DEEMED NECESSARY TO SUBSTANTIATE ITS CASE. THE ASSESSEE BEFORE THE TRIBUNAL DID NOT CONTEST THE FI NDING BY THE LD. CIT(A) WITH REGARD TO THE NON-ADMISSION OF THE ADDITIONAL EVIDENCE/S SOUG HT TO BE PLACED BEFORE HIM. IN FACT, IT M.P.NO.48/COCH./2010 3 OBSERVED ABSENCE OF ANY CONTENTION BY THE ASSESSEE WITH REGARD TO ITS EVIDENCE/S BEING NOT ADMITTED, AND CONSEQUENTLY, NOT CONSIDERED BY T HE AUTHORITIES BELOW. AS SUCH, NO GRIEVANCE QUA NON-CONSIDERATION OF THE SAME COULD HOLD. THE ASS ESSEE-APPELLANT, FOR A SUCCESSFUL CHALLENGE BEFORE THE TRIBUNAL, WAS THERE FORE REQUIRED TO SHOW THE INFIRMITY THAT ATTENDED THE LD. CIT(A)S FINDING WITH REFERENCE TO THE MATERIAL ON RECORD, I.E., THE ADMITTED MATERIAL. THE TRIBUNAL OBSERVED NO SUCH I NFIRMITY NOR ANY STOOD POINTED OUT BY THE ASSESSEE, SO THAT ITS CLAIM/S IN RESPECT TO THE SAID MATTER STOOD DULY CONSIDERED AND, THUS, NO CAUSE OF GRIEVANCE SURVIVED. IT IS THIS FI NDING WHICH HAS FORMED THE BASIS OF THE TRIBUNALS DECISION IN ENDORSING THE FINDING OF THE REVENUE AUTHORITIES VIDE PARAS 11 & 12 OF ITS ORDER. UNDER THE CIRCUMSTANCES, WE DO NOT F IND ANY INFIRMITY OR INCONSISTENCY IN THE TRIBUNALS ORDER, MUCH LESS A MISTAKE RECTIFIAB LE U/S. 254(2) OF THE ACT. WE DECIDE ACCORDINGLY. 6. THE NEXT `MISTAKE POINTED OUT BY THE ASSESSE E PER ITS INSTANT PETITION RELATES TO THE DISPOSAL OF ITS GROUND NO. 6 WHEREBY THE ASSESSEE S EEKS RELIEF IN RESPECT OF 71 MT OF SCRAP STOCK PURCHASED FROM M/S TRANVANCORE METAL IN DUSTRIES, KOTTAYAM, WHICH IT CLAIMED TO HAVE BEEN SIMILARLY, I.E., AS IN THE CAS E OF GROUND # 5, NOT ENTERED IN THE STOCK REGISTER ON ACCOUNT OF THE SAME HAVING BEEN SUPPLIE D DIRECTLY TO THE BUYER, I.E., WITHOUT HAVING BEEN BROUGHT IN ITS STOCK YARD AT CALICUT, S O THAT THE DIFFERENCE IN STOCK STANDS TO BE REDUCED BY THE SAID QUANTITY (71 MT). 7. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. THE TRIBUNAL HAS DEALT THIS ISSUE VIDE PARA 13 OF ITS ORDER, STATING THAT THE FIRST APPELLATE AUTHORITY HAD ELABORATELY DEALT WITH THIS ISSUE VIDE PARA 7 OF IT S ORDER, ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT OF 62.05 MT VIDE PARA 7(F) (PG. 8 TO 12) OF HIS ORDER. NO DISCREPANCY HAVING BEEN POINTED OUT BY THE ASSESSEE-APPELLANT THEREIN, IT, UNDER THE CIRCUMSTANCES, HELD THAT NO INTERFERENCE WITH THE IMPUGNED ORDER IS WARRANTE D. THE APPELLANT-APPLICANT HAS ALSO STATED THAT THE ADOPTION OF THE QUANTITY AT 62.05 M T BY THE LD. CIT(A), INSTEAD OF 71 MT, IS BY WAY OF A MISTAKE, WHICH OUGHT TO HAVE BEEN CO NSIDERED BY THE TRIBUNAL. WE ARE, HOWEVER, UNABLE TO AGREE. FIRSTLY, NO SUCH CONTENT ION STOOD RAISED BEFORE THE TRIBUNAL DURING THE HEARING; THE ASSESSEE, RATHER, CLAIMING RELIEF IN RESPECT OF THE ENTIRE 71 MT M.P.NO.48/COCH./2010 4 STATED TO HAVE BEEN OMITTED FROM BEING ENTERED IN T HE STOCK REGISTER. AS AFORE-STATED, THE TRIBUNAL FOUND ITS CLAIM/S IN THE MATTER AS HAVING BEEN, RATHER, SUBJECT TO A DETAILED EXAMINATION ON MERITS AND, CONSEQUENTLY, ALLOWED SU BSTANTIAL RELIEF BY THE LD. CIT(A) AND, SECONDLY, OF IT HAVING FAILED TO POINT OUT ANY DISCREPANCY IN THE SAID EXAMINATION AND THE CONSEQUENT RELIEF ALLOWED, BY CONSIDERING EACH OF THE EVIDENCES RELIED UPON BY THE ASSESSEE. IN FACT, THE ASSESSEES ARGUMENT BEARS A CONTRADICTION TO THE EXTENT THAT IF THERE HAD BEEN A MISTAKE BY THE LD. CIT(A), IT OUGHT TO H AVE BEEN PURSUED THE SAID AUTHORITY FOR ITS RECTIFICATION AND, AT ANY RATE, OUGHT TO HAVE P ROJECTED THE SAID MISTAKE, BEING ITS ONLY GRIEVANCE, BEFORE THE TRIBUNAL. WE DECIDE ACCORDIN GLY. 8. IN THE RESULT, THE ASSESSEES MISCELLANEOUS PETI TION IS PARTLY ALLOWED. SD/- SD /- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 22ND NOVEMBER, 2010 GJ COPY TO: 1. M/S. KALLIYATH WIRE DISTRIBUTORS, OPP. R.K.MISSI ON HIGH SCHOOL, PANNIYANKARA, CALICUT. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, INVEST IGATION, CIRCLE-1, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, CALI CUT 4. THE COMMISSIONER OF INCOME-TAX, CALICUT. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTR AR) M.P.NO.48/COCH./2010 5