M/s.A.M.Motors, Malappuram V. DCIT, Trichur

MA 57/COCH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2013 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 02-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: J PRABHAKAR

Judgement Text

1 MA NO.57/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) M.A. 57/COCH/2014 (ARISING OUT OF I.T(SS)A NO. 22/COCH/2014) (BLOCK PERIOD 01-04-1996 TO 28-08-2002) M/S A.M. MOTORS VS DCIT, CENT.CIR.1 VARANGODE DOWN HILL TRICHUR MALAPPURAM PAN : AAHFA8699Q (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI J PRABHAKAR RESPONDENT BY : SHRI K.K. JOHN, SR DR DATE OF HEARING : 04-07-2014 DATE OF PRONOUNCEMENT : 18-07-2014 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT APPLICATION ON THE GROUND THAT THE ENTIRE ASSESSMENT WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION ON THE MISTAKEN IMPRESSION THAT THE E NTIRE ASSESSMENT FRAMED WAS PROTECTIVE. 2. SHRI J PRABHAKAR, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER ON THE GROUND THAT THE PARTNERS APPEAL IN WHOSE HAND THE SUBSTANTIVE ADDITION WAS MADE WAS REMANDED BACK TO THE FILE OF THE 2 MA NO.57/COCH/2014 ASSESSING OFFICER. ACCORDING TO THE LD.REPRESENTAT IVE, THE ITAT HAS NOT MADE ANY SPECIFIC OBSERVATION WITH REGARD TO THE MA TTER WHICH NEEDS TO BEFOLLOWED BY THE ASSESSING OFFICER . WITHOUT PRES CRIBING ANY LIMITATIONS, ACCORDING TO THE LD.REPRESENTATIVE, THE OPEN REMAND MADE BY THE ITAT IS NOT CORRECT. THEREFORE, THE ITATS ORDER NEEDS TO BE CLARIFIED. 3. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE FILED APPEAL BEFORE THE HIGH COURT IN ITA NO.211 OF 2012. THE HIGH COURT BY JUDGMENT DATED 23-10-2013 CONFIRMED THE ORDER OF TH E ITAT. THE ASSESSEE HAS FILED SPECIAL LEAVE PETITION BEFORE TH E SUPREME COURT AGAINST THE ORDER OF THE HIGH COURT. ACCORDING TO THE LD.REPRESENTATIVE, THE ORDER OF THE ITAT NEEDS TO BE CLARIFIED SINCE OPEN REMAND MADE BY THE ITAT IS NOT CORRECT. ON A QUERY FROM THE BENCH, WH EN THE HIGH COURT CONFIRMED THE ORDER OF THE ITAT ON THE APPEAL FILED BY THE ASSESSEE AND THE SLP IS PENDING BEFORE THE APEX COURT CHALLENGIN G THE CORRECTNESS OF THE ORDER OF THE HIGH COURT, WHETHER THE ITATS ORD ER STILL SURVIVES FOR RECTIFICATION, THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE FILED MISCELLANEOUS APPLICATION ON THE ADVICE OF THE SENI OR COUNSEL, WHO ARGUED THE APPEAL BEFORE THE SUPREME COURT. THEREFORE, TH E ITAT HAS TO CLARIFY ITS ORDER. WE HAVE HEARD SHRI K.K. JOHN, THE LD.DR ALSO. 4. ADMITTEDLY, IN RESPECT OF AN APPEAL FILED BY THE PARTNER OF THE ASSESSEE FIRM IN WHOSE HAND THE SUBSTANTIAL ADDITIO N WAS MADE WAS 3 MA NO.57/COCH/2014 REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER BY THIS TRIBUNAL. THE ADDITION IN THE HANDS OF THE PRESENT ASSESSEE WAS M ADE ON PROTECTIVE BASIS. THEREFORE, THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION AFTER GIVING OPPORTUNITY TO THE ASSESSEE. THE CORRECTNESS OF THE ORDER OF THIS TRI BUNAL WAS CHALLENGED BEFORE THE HIGH COURT AND THE HIGH COURT BY ITS JUD GMENT DATED 23-10- 2013 FOUND THAT THERE IS A JUSTIFICATION IN THE OPI NION OF THE TRIBUNAL SINCE THE ADDITION MADE IN THE HANDS OF PARTNER, SHRI MOH AMMAD SHARIF, WAS REMANDED BACK TO THE ASSESSING OFFICER FOR FRESH AS SESSMENT. IN VIEW OF THE ORDER OF THE HIGH COURT, THE ORDER OF THE ITAT MERGED WITH THE ORDER OF THE HIGH COURT AND THE ITATS ORDER IS NOT IN EXIST ENCE FOR RECTIFICATION. THEREFORE, IF AT ALL THERE IS ANY ERROR, WHAT IS TO BE RECTIFIED IS THE HIGH COURT ORDER AND NOT THE ITATS ORDER. THE APPLICAT ION FILED BY THE ASSESSEE FOR RECTIFICATION OF THE ORDER OF ITAT IS NOT MAINTAINABLE SINCE THE ORDER OF THE ITAT IS MERGED WITH THAT OF THE HIGH C OURT ORDER. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED AS DEVOID OF MERIT. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH JULY, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 18 TH JULY, 2014 PK/- 4 MA NO.57/COCH/2014 COPY TO: 1. M/S A.M. MOTORS, VARANGODE, MALAPPURAM, KERALA S TATE 2. THE DY.CIT, CENT.CIR.TRICHUR 3. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH