M/s KSEB, Trivandrum V. ACIT, Trivandrum

MA 54/COCH/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9351 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 20-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: PREETHA S NAIR
• Keywords: Revised return

Judgement Text

1 MA NOS.52, & 54-56/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO 52/COCH/2010 (ARISING OUT OF I.T.A NO. 785/COCH/2008) (ASSESSMENT YEAR2005-06) DY.CIT, CIR.1(1) VS KSEB, TRIVANDRUM TRIVANDRUM PAN : AABCK5896J (APPLICANT) (RESPONDENT) M.A. NOS 54, 55&56/COCH/2010 (ARISING OUT OF I.T.A NOS. 110/COCH/2006, 313&776/C OCH/2007) (ASSESSMENT YEARS 2002-03, 2003-04 & 2004-05) KSEB, VIDHYUT BHAVAN VS A.C.I.T. CIR.1(1) PATTAOM, TRIVANDRUM TRIVANDRUM PAN : AABCK5896J (APPLICANT) (RESPONDENT) TAXPAYER BY : SHRI PREETHA S NAIR RESPONDENT BY : SMT. SUSAN GEORGE VARGHESE DATE OF HEARING : 16-11-2012 DATE OF PRONOUNCEMENT : 30-11-2012 2 MA NOS.52, & 54-56/COCH/2010 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THREE MISCELLANEOUS APPLICA TIONS FOR THE ASSESSMENT YEARS 2002-03, 2003-04 & 2004-05 WHEREAS THE REVENUE HAS FILED ONE MISCELLANEOUS APPLICATION FOR THE ASSESSM ENT YEAR 2005-06. 2. WHEN THE MISCELLANEOUS APPLICATIONS FILED BY THE TAXPAYER WERE TAKEN UP FOR HEARING, SMT. PREETHA S NAIR, THE LD.C OUNSEL FOR THE TAXPAYER SUBMITTED THAT THE HIGH COURT HAS ALREADY PASSED OR DER ON THE APPEALS FILED BY THE TAXPAYER AGAINST THE ORDER OF THE TRIBUNAL D ATED 03-04-2009. THEREFORE, ALL THE THREE MISCELLANEOUS APPLICATIONS FILED BY THE TAXPAYER MAY NOT SURVIVE FOR CONSIDERATION. ADMITTEDLY, THE HIGH COURT PASSED THE JUDGMENT ON 12-11-2010 ON THE APPEALS FILED BY THE T AXPAYER AGAINST THE ORDER OF THE TRIBUNAL DATED 03-04-2009. THEREFORE, THE ORDER OF THIS TRIBUNAL GETS MERGED WITH THE JUDGMENT OF THE HIGH C OURT. ONCE THE ORDER OF THE TRIBUNAL MERGED WITH THE JUDGMENT OF THE HIGH COURT THE ORDER OF THE TRIBUNAL WOULD NOT BE AVAILABLE FOR RECTIFICATI ON. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE TAXPAYER, THE ORDER OF TH E TRIBUNAL DOES NOT SURVIVE. ACCORDINGLY, ALL THE THREE MISCELLANEOUS APPLICATIONS FILED BY THE TAXPAYER ARE DISMISSED. 3 MA NOS.52, & 54-56/COCH/2010 3. NOW COMING TO THE MISCELLANEOUS APPLICATIONS FIL ED BY THE REVENUE FOR THE ASSESSMENT YEAR 2005-06, SMT. SUSAN GEORGE VARGHESE, THE LD.DR SUBMITTED THAT THE TAXPAYER HAS NOT FILED ANY REVIS ED RETURN IN RESPECT OF PRIOR PERIOD EXPENSES. IN THE ABSENCE OF ANY REVIS ED RETURN, IN VIEW OF THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD VS COMMISSIONER OF INCOME-TAX 284 ITR 323 (SC), THE CL AIM OF THE TAXPAYER CANNOT BE ACCEPTED. WE HEARD, SMT. PREETHA S NAIR, THE LD.COUNSEL FOR THE TAXPAYER ALSO. 4. NO DOUBT, IN THE CASE OF GOETZE INDIA LTD (SUPRA ), THE APEX COURT FOUND THAT THE CLAIM OF THE TAXPAYER HAS TO BE MADE BY WAY OF A REVISED RETURN. HOWEVER, IN THE VERY SAME JUDGMENT THE APEX COURT MADE IT CLEAR THAT IT WILL NOT IMPINGE THE POWER OF THE TRIBUNAL TO ADMIT THE CLAIM OF THE TAXPAYER. IN VIEW OF THIS JUDGMENT OF THE APEX COUR T IN THE CASE OF GOETZE INDIA LTD (SUPRA) THE CONSTRAINT PUT ON THE ASSESSI NG OFFICER MAY NOT BE APPLICABLE TO THE TRIBUNAL. AS CLARIFIED BY THE AP EX COURT, THE APPELLATE POWER OF THIS TRIBUNAL TO ADMIT THE ADDITIONAL GROU ND MAY NOT IMPINGE AT ALL. THEREFORE, THIS TRIBUNAL FIND NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN 4 MA NOS.52, & 54-56/COCH/2010 THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THE MISCE LLANEOUS APPLICATION OF THE REVENUE ALSO IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE TAXPAYER AS WELL AS THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH NOVEMBER, 2012 PK/- COPY TO: 1. THE APPLICANTS 2. THE RESPONDENTS 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH