Dr.K.K.R.Warrier, Ernakulam V. ACIT, Ernakulam

MA 6/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8626 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-06-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 17-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: C B M WARRIER
• Keywords: Peak credit

Judgement Text

1 M.A.NO. 06 & 07/COCH/2012 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.06 & 07/COCH/2012 (ARISING OUT OF I.T(SS)A NOS. 22 & 23/COCH/2008) (ASSESSMENT YEARS 2001-02 & 2002-03) DR K.K.R WARRIER VS A.C.I.T., CENT.CIR.1 PARTNER IN M/S LAKSHMI HOSPITAL ERNAKULAM DIWANS ROAD, ERNAKULAM PAN : AAEPW0928M (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI C.B.M. WARRIER RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 29-06-2012 DATE OF PRONOUNCEMENT : 20-07-2012 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS APPLI CATIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DAT ED 30-11-2011. 2. SHRI C.B.M. WARRIER, THE LD.REPRESENTATIVE FOR T HE ASSESSEE SUBMITTED THAT FOR THE ASSESSMENT YEAR 2001-02 THIS TRIBUNAL REMANDED BACK THE ISSUE RELATING TO PEAK CREDIT TO THE ASSESSING OFFICER FOR RECONSIDERATION. ACCO RDING TO THE LD.REPRESENTATIVE, THE SAME AMOUNT WAS ALREADY ASSESSED IN THE HANDS OF LA XMI HOSPITAL, THE PARTNERSHIP FIRM IN WHICH THE ASSESSEE IS A PARTNER FOR THE ASSESSME NT YEAR 2001-02. THE ADDITION MADE BY THE ASSESSING OFFICER IN THE HANDS OF LAXMI HOSP ITAL WAS DELETED BY THE COMMISSIONER OF INCOME-TAX(A). THE APPEAL FILED BY THE REVENUE BEFORE THIS TRIBUNAL WAS ALSO DISMISSED. THE FURTHER APPEAL FILED BEFORE THE HIG H COURT WAS ALSO DISMISSED BY A 2 M.A.NO. 06 & 07/COCH/2012 JUDGMENT DATED 04-07-2011. THEREFORE, IT MAY NOT B E NECESSARY FOR THE TRIBUNAL TO REMAND BACK THE PEAK CREDIT ISSUE TO THE FILE OF TH E ASSESSING OFFICER. 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THIS TRIBUNAL AFTER CONSIDERING THE ORDER IN THE CASE OF LAXMI HOSPITAL FOUND THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDING TO THE LD.DR, ONCE A CONSCIENTIOUS DECISION WAS TAKEN BY THE TRIBUNAL IT CANNOT BE SAI D THAT THERE WAS AN ERROR IN THE ORDER OF THIS TRIBUNAL. ACCORDING TO THE LD.DR, THE ASSE SSEE WANTS A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL AFTER CONSIDERING THE ORDER IN THE CASE OF LAXMI HOSPITAL, THE PARTNERSHIP FIRM IN WHICH THE A SSESSEE IS THE PARTNER FOUND THAT THE INCREMENTAL PEAK DEPOSIT AMOUNT FOR THE CURRENT YEA R IS LIABLE FOR BEING DEEMED AS INCOME THEREFOR. FINALLY THE MATTER WAS REMANDED B ACK TO THE FILE OF THE ASSESSING OFFICER FOR QUANTIFICATION OF THE PEAK AMOUNT WHICH WOULD STAND TO BE ASSESSED IN THE HANDS OF THE ASSESSEE FOR THE CURRENT YEAR. THEREF ORE, THE DECISION WAS TAKEN BY THE TRIBUNAL CONSCIOUSLY AFTER CONSIDERING THE ORDER IN THE CASE OF LAXMI HOSPITAL, THE PARTNERSHIP FIRM. ONCE THE TRIBUNAL HAS TAKEN A CO NSCIENTIOUS DECISION TO REMAND BACK THE MATTER IT CANNOT BE SAID THAT AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD HAS CREPT IN. AS RIGHTLY POINTED OUT BY THE LD.DR, ONCE THE CO-ORDINATE BENCH HAS TAKEN A VIEW ONE WAY OR THE OTHER IT CANNOT BE REVIEWED BY ANOTHER BENCH OF THE TRIBUNAL. THE REMEDY WOULD BE BY WAY OF APPEAL BEFORE THE COMPETE NT COURT OF LAW. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY ERROR MUCH LESS PRIMA FACI E ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 5. NOW COMING TO ASSESSMENT YEAR 2002-03 THE LD.REP RESENTATIVE SUBMITTED THAT THE ASSESSEE HAS TAKEN A SPECIFIC GROUND THAT THE T AX EFFECT FOR THE ASSESSMENT YEAR 2002-03 IS LESS THAN RS.2 LAKHS, THEREFORE, THE APP EAL OF THE REVENUE IS NOT MAINTAINABLE.