ITO, Kannur V. Sri. P.P.Bhaskaran, Mahe

MA 49/COCH/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 8913 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 26-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S BINDU
• Assessee Lawyers: BHASKAR KRISHNAN
• Keywords: Unexplained investment; Retraction; Documents seized
• Section: 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., JM M.P. NO .49 /COCH/201 3 (ARSG. OUT OF I.T.A. NO. 212/COCH/2011) ( ASSESSMENT YEAR S : 20 06 - 07 ) THE INCOME TAX OFFICER, WARD-2, KANNUR VS. SHRI P.P. BHASKARAN, ROMA ELECTRICALS, PARAKKAL, MAHE. [PAN:AHAPB 1019R] ( REVENUE - APPELLANT) ( ASSESSEE - RESPONDENT) REVENUE BY S MT. A.S. BINDU, DR ASSESSEE BY SHRI BHASKAR KRISHNAN DATE OF HEARING 0 5 / 10 /2018 DATE OF PRONOUNCEMENT 08 / 10 /2018 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION U/S. 254(2) OF THE INCOME-TAX ACT, 1961 HAS BEEN PREFERRED BY THE REVENUE PRAYING FOR RECALLING OF THE TRIBUNAL ORDER DATED 22-09-2011, PASSED IN ITA NO.212/COCH/2016 FOR THE ASSESSMENT YEAR 2006-07. 2. THE LD. DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IN ITA.NO.2L2/ COCH/2011 DATED 22/09/2011 DELETED THE ADDITION MADE BY THE ASSESSING OFFICER M.P. NO.49/COCH/2013 2 AMOUNTING TO RS. 76,90,320/- BEING UNEXPLAINED INVESTMENT IN MAHE PROPERTY FOR THE A.Y. 2006-07 IN THE CASE OF SHRI. P.P. BHASKARAN, MAHE WAS ERRRONEOUS. IT WAS SUBMITTED THAT THE TRIBUNAL, FOR THE REASONS DISCUSSED IN PARA 6 OF THE ORDERS IN THE CASES OF SHRI JAFEES MOHAMMED AND SHRI. K. ASHRAF (ITA NOS. 718 & 719/COCH/2010 & ITA NOS. 724 & 72S/COCH/2010) OBSERVED THAT THE 53 PERSONS WHO SOLD THE MAHE PROPERTY TO THE ASSESSEE NEGATIVED THE PRESENCE OF ON MONEY BY THE CONFIRMATION LETTERS GIVEN BY THEM. IT WAS SUBMITTED THAT THE DECISION IN THE ABOVE CASE WAS FOLLOWED FOR ALLOWING THE APPEAL IN THE CASE OF SHRI. P.P. BHASKARAN AND THETRIBUNAL HAD DELETED THE ADDITIONS ON THE BASIS OF THESE CONFIRMATION LETTERS. 2.1. HOWEVER, IT WAS SUBMITTED THAT NO SUCH CONFIRMATION LETTERS HAVE BEEN FILED IN THE CASE OF SHRI. JAFEES MOHAMMED AND SHRI. K. ASHRAF OR IN THE CASE OF SHRI. P.P. BHASKARAN BEFORE THE ITAT. MOREOVER, IT WAS SUBMITTED THAT THE TRIBUNAL WAS PLEASED TO ADMIT THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE IN THE CONNECTED CASES VIZ. SHRI. K. ASHRAF, SHRI. JAFEES MOHAMMED, SHRI, V.V. MOHAMMED VIDE M.A.NOS. 36 & 37, 38 & 39, 40 & 41/COCH/2012 DATED 30/11/2012 AND HAD DECIDED THAT NO SUCH CONFIRMATION LETTERS HAVE BEEN PROVIDED BEFORE THE TRIBUNAL AND THAT A FACTUAL ERROR MIGHT HAVE CREPT IN THE IMPUGNED ORDER AND THEREFORE RECALLED THE ORDERS PASSED IN THE ABOVE CASES. THEREFORE, IT WAS SUBMITTED THAT THE DELETION OF THE ADDITION OF RS.76,90,320/- IN THE CASE OF SHRI. P.P. BHASKARAN IS ALSO A MISTAKE APPARENT FROM THE RECORDS. M.P. NO.49/COCH/2013 3 2.2 ACCORDING TO THE LD. DR, THE ADDITIONS WERE MADE ON THE BASIS OF DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND THEY CAN NEVER BE SIGNED PRINTOUTS UNLESS THEY ARE SCANNED AND PRINTOUTS GENERATED FROM COMPUTER ARE ALWAYS UNSIGNED. IT WAS SUBMITTED THAT THE EVIDENCES WERE FROM THE SEIZED MATERIALS AND THE SAME HAVE BEEN CORROBORATED BY THE SWORN STATEMENT RECORDED U/S 132(4) OF THE INCOME TAX ACT FROM THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE HAD AGAIN CONFIRMED HIS INVESTMENT VIDE STATEMENT RECORDED U/S 131 AFTER THREE MONTHS OF CONDUCTING THE SEARCH/RECORDING OF ORIGINAL SWORN STATEMENT AND SUBSEQUENT RETRACTION MADE AFTER TWO YEARS ON 27.09.2009 CAN ONLY BE TERMED AS AN AFTERTHOUGHT ONLY FOR ESCAPEMENT FROM TAXATION. THE LD. DR RELIED ON THE DECISION OF HON'BLE HIGH COURT OF KERALA IN THE CASE OF CIT VS SHRI. 0. ABDUL RAZAK IN ITA NO. 1288 OF 2009 DATED 23.12.2011 WHICH UPHELD THE VALIDITY OF STATEMENT RECORDED U/S 132(4) OF THE I.T. ACT. 2.3 IT WAS SUBMITTED THAT THE SEIZED MATERIALS ALSO SHOWED THE INVESTMENT MADE BY THE ASSESSEE IN MAHE PROPERTY AND KOOTHUPARARNBA PROPERTY AND THE TRIBUNAL SHOULD NOT HAVE RELIED ON THE RETRACTED STATEMENT WITHOUT PUTTING THE ASSESSEE TO PROOF. BEING SO, IT WAS SUBMITTED THAT THE RETRACTED STATEMENT, BY ITSELF, IS NO EVIDENCE. THE LD. DR SUBMITTED THAT THE FINDING OF THE TRIBUNAL THAT 'UNLESS IT IS ESTABLISHED THAT THERE IS UNEXPLAINED INVESTMENT NO ADDITION CAN BE MADE U/S 69 OF THE INCOME TAX ACT' IS AGAINST LAW AND PUTTING THE BURDEN OF M.P. NO.49/COCH/2013 4 PROOF WRONGLY ON THE REVENUE. IN VIEW OF THE ABOVE FACTS, THE LD. DR PRAYED THAT THE ORDER OF THE TRIBUNAL CITED SUPRA MAY BE RECALLED. 3. THE LD. AR SUBMITTED THAT THE ORDER OF THE TRIBUNAL CITED SUPRA DOES NOT REQUIRE ANY INTERFERENCE BY THE TRIBUNAL. HE ALSO RELIED ON THE JUDGMENT OF THE KERALA HIGH COURT IN ITA NOS. 55 & 111/2012 DATED 6 TH JUNE, 2016 WHEREIN IT WAS HELD AS UNDER: IT IS SUBMITTED BY BOTH SIDES THAT THE TRIBUNAL HAS ALREADY RECALLED THE ORDER AND THAT THEREFORE, THESE APPEALS HAVE BECOME INFRUCTUOUS. ACCORDINGLY, THE APPEALS ARE DISMISSED AS INFRUCTUOUS. 3.1 THUS, IT WAS SUBMITTED THAT THERE IS NO INTERFERENCE CALLED FOR AT THIS STAGE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE TRIBUNAL IN THE CASE OF SHRI K. ASHRAF AND OTHERS IN ITA NOS. 211 & 212/COCH/2011 VIDE ITS ORDER DATED 16/02/2018 HAD REMITTED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. FURTHER, NEITHER THE TRIBUNAL NOR THE HIGH COURT HAD CONSIDERED THE ISSUE RELATING TO THE ASSESSMENT YEAR 2006-07. BEING SO, THERE IS NO MERIT IN THE ARGUMENT OF THE LD. AR THAT THE TRIBUNAL AND THE HIGH COURT HAVE ALSO CONSIDERED THE CASE OF THE PRESENT ASSESSEE ON THE ISSUE FOR THE ASSESSMENT YEAR 2006-07. THE ISSUE OF UNEXPLAINED INVESTMENT RELATING TO THIS ASSESSEE WAS CONSIDERED BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 2005-06 IN ITA NO. 211/COCH/2011 VIDE ITS ORDER DATED 16/02/2018 AND HENCE, TO BRING PARITY WITH THAT DECISION, WE RECALL THE EARLIER ORDER OF THE TRIBUNAL IN ITA NO. M.P. NO.49/COCH/2013 5 212/COCH/2011 DATED 22 ND SEPTEMBER, 2011 AND DIRECT THE REGISTRY TO POST THE APPEAL FOR FINAL HEARING ON 10/10/2018 SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THE REGISTRY NEED NOT SEND SEPARATE NOTICE OF HEARING TO THEM, I.E., THE PRESENT ORDER SHALL ALSO BE CONSTRUED AS NOTICE OF HEARING, WHICH MAY BE TAKEN NOTE OF BY BOTH THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 8 TH OCTOBER, 2018. SD/- SD/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 8 TH OCTOBER, 2018 GJ COPY TO: 1. SHRI P.P. BHASKARAN, ROMA ELECTRICALS, PARAKKAL, MAHE. 2. THE INCOME TAX OFFICER, WARD-2, KANNUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, KOCHI. 2. THE PR. COMMISSIONER OF INCOME-TAX, KOZHIKODE. 3. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 4. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN