Sri.V.V. Mohammed, Kannur V. DCIT, Calicut

MA 64/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9342 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: T M SREEDHARANSR

Judgement Text

1 MA NOS.36-41 & 62-67/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.NOS 36 & 37/COCH/2012 I.T.A NOS. 724 & 725/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) ITO, WD.2 VS SHRI K ASHRAF KANNUR 56, M.C. ENCLAVE NEAR KUYYALI BRIDGE PO KAVUMBHAGAM THALASSERY 670 110 PAN : ACKPA7245H (APPLICANT) (RESPONDENT) M.A.NOS 66 & 67/COCH/2012 I.T.A NOS. 724 & 725/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) SHRI K ASHRAF VS DY.CIT, CENBT.CIR.2 PO KAVUMBHAGAM, THALASSERY CALICUT (APPLICANT) (RESPONDENT) M.A.NOS 38 & 39/COCH/2012 I.T.A NOS. 718 & 719/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) ITO, WD.2 VS SHRI JAFEES MOHAMMED KANNUR 47, M.C. ENCLAVE NEAR KUYYALI BRIDGE PO KAVUMBHAGAM THALASSERY 670 110 PAN : ASFPJ1590B (APPLICANT) (RESPONDENT) 2 MA NOS.36-41 & 62-67/COCH/2012 M.A.NOS 62 & 63/COCH/2012 I.T.A NOS. 718 & 719/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) SHRI JAFEES MOHAMMED VS DY.CIT, CENBT.CIR.2 PO KAVUMBHAGAM, THALASSERY CALICUT (APPLICANT) (RESPONDENT) M.A.NOS 40 & 41/COCH/2012 I.T.A NOS. 737 & 738/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) ITO, WD.2 VS SHRI V.V. MOHAMMED KANNUR VANNATHAN VEETTIL NEAR KUYYALI BRIDGE PO THALASSERY, KANNUR DIST PAN : AECPM7765A (APPLICANT) (RESPONDENT) M.A.NOS 64 & 65/COCH/2012 I.T.A NOS. 737 & 738/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) SHRI V.V. MOHAMMED VS DY.CIT, CENBT.CIR.2 VANNATHAN VEETTIL, VEE VEES CALICUT CHETTAMKUNNU, P.O. THALASSERRY KANNUR DIST. PAN : AECPM7765A (APPLICANT) (RESPONDENT) APPLICANTS BY :SHRI T.M. SREEDHARAN, SR COUNSEL RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 16-11-2012 3 MA NOS.36-41 & 62-67/COCH/2012 DATE OF PRONOUNCEMENT : 30-11-2012 O R D E R PER N.R.S. GANESAN (JM) ALL THE ABOVE MISCELLANEOUS APPLICATIONS ARE FILED BY THE REVENUE AS WELL AS THREE INDEPENDENT TAXPAYERS ON THE GROUND T HAT THERE IS AN ERROR IN THE ORDERS OF THIS TRIBUNAL. 2. SHRI T.M. SREEDHARAN, THE LD.SENIOR COUNSEL SUBM ITTED THAT THIS TRIBUNAL DELETED THE ADDITION FOR THE ASSESSMENT YE ARS 2005-06 AND 2006- 07 ON THE BASIS OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P.V. KALYANA SUNDARAM (2007) 294 ITR 49 (SC) AND IN THE CASE OF K.P. VARGHESE VS. ITO (1981) 139 ITR 597 (SC). THIS TRIBUNAL HAS ALSO OBSERVED THAT ALL THE 53 PERSONS FROM WHOM THE LAND WAS PURCHASED CONFIRM ED THAT THEY HAVE RECEIVED MONEY ONLY ON THE BASIS OF THE REGISTERED SALE DEED AND NOTHING MORE. ACCORDING TO THE LD.SENIOR COUNSEL, THIS OBS ERVATION OF THE INCOME- TAX APPELLATE TRIBUNAL IS NOT CORRECT. ACCORDING T O THE LD.SENIOR COUNSEL, THE TAXPAYER HAS NOT FILED ANY CONFIRMATION LETTER FROM ANYBODY BEFORE THE ASSESSING OFFICER OR BEFORE THE COMMISSIONER OF INC OME-TAX(A). NO SUCH CONFIRMATION WAS FILED EVEN BEFORE THIS TRIBUNAL. THEREFORE, THIS 4 MA NOS.36-41 & 62-67/COCH/2012 OBSERVATION OF THE TRIBUNAL IS NOT BASED ON THE MAT ERIAL AVAILABLE ON RECORD. THE LD.SENIOR COUNSEL FURTHER SUBMITTED TH AT IT WAS NOT 53 PERSONS FROM WHOM LAND WAS PURCHASED, BUT 65 PERSONS FROM W HOM THE LAND WAS PURCHASED. THEREFORE, ACCORDING TO THE LD. SENIOR COUNSEL, THIS ERROR NEEDS TO BE RECTIFIED. 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SUB MITTED THAT THIS TRIBUNAL MAINLY DELETED THE ADDITION MADE BY THE AS SESSING OFFICER ON THE GROUND THAT 53 PERSONS CONFIRMED THAT THEY HAVE NOT RECEIVED ANY MONEY OVER AND ABOVE WHAT WAS MENTIONED IN THE REGISTERED SALE DEED. THERE ARE NO SUCH CONFIRMATIONS FILED BEFORE THE ASSESSING OF FICER OR BEFORE THE COMMISSIONER OF INCOME-TAX(A) ALSO. AS ADMITTED BY THE LD.DR, NO SUCH CONFIRMATIONS WERE FILED BEFORE THIS TRIBUNAL ALSO. IN FACT, THE DEPARTMENT HAS FILED THE MISCELLANEOUS APPLICATIONS ON 22-05-2 012. AFTER THAT THE TAXPAYERS HAVE ALSO FILED THE MISCELLANEOUS APPLICA TIONS ON THE GROUND THAT NO SUCH CONFIRMATION LETTERS WERE FILED EITHER BEFO RE THE ASSESSING OFFICER OR BEFORE THE COMMISSIONER OF INCOME-TAX(A). SO, A CCORDING TO THE LD.DR, THIS TRIBUNAL HAS DELETED THE ADDITION ON THE PRESU MPTION THAT THE TAXPAYERS HAVE FILED THE CONFIRMATION LETTERS FROM 53 PERSONS. THIS IS 5 MA NOS.36-41 & 62-67/COCH/2012 FACTUALLY INCORRECT. IN FACT, NO SUCH CONFIRMATION LETTERS WERE AVAILABLE ON RECORD. THEREFORE, THE ORDERS OF THE TRIBUNAL NEED TO BE RECALLED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MAIN CONTENTION OF THE LD.SENIOR COUNSEL FOR THE TAXPAYER IS THAT THE TRIB UNAL PASSED ITS ORDER ON THE BASIS OF THE JUDGMENT OF THE APEX COURT IN THE C ASE OF IN THE CASE OF P.V. KALYANA SUNDARAM (2007) 294 ITR 49 (SC) AND IN THE CASE OF K.P. VARGHESE VS. ITO (1981) 139 ITR 597 (SC). NO DOUBT , THE PRINCIPLE LAID DOWN BY THE APEX COURT WAS TAKEN NOTE OF BY THE TRIBUNAL . BUT THE FACTUAL ASPECT AS TO WHETHER ANY MONEY WAS RECEIVED BY THE TAXPAYE R OVER AND ABOVE THE AMOUNT MENTIONED IN THE SALE DEED NEEDS TO BE EXAMI NED ON THE FACTS OF EACH CASE. IN THIS CASE, THE TRIBUNAL PROCEEDED ON THE PRESUMPTION THAT ALL THE 53 PERSONS CONFIRMED THAT NO MONEY WAS RECEIVED OVER AND ABOVE THE ONE MENTIONED IN THE REGISTERED SALE DEED. IN FACT , NO CONFIRMATION WAS FILED BY ANY OF THEM AND THE LAND WAS PURCHASED NOT FROM 53 PERSONS, BUT FROM 65 PERSONS. IN THE ABSENCE OF ANY CONFIRMATIO N LETTER TO THE EFFECT, IT IS NECESSARY TO EXAMINE WHETHER ANY OTHER MATERIAL IS AVAILABLE ON RECORD. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ORDERS PASSED 6 MA NOS.36-41 & 62-67/COCH/2012 BY THE TRIBUNAL ON THE PRESUMPTION THAT 53 PERSONS FILED CONFIRMATION LETTERS ARE FACTUALLY INCORRECT. THEREFORE, A FACT UAL ERROR HAS CREPT IN THE ORDERS OF THIS TRIBUNAL. THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT THIS FACTUAL ERROR MIGHT HAVE CREPT IN THE ORDERS THROUG H OVERSIGHT. MERELY BY DELETING THAT OBSERVATION MAY NOT MEET THE ENDS OF JUSTICE. ONCE THERE IS NO CONFIRMATION LETTER, THIS TRIBUNAL IS OF THE CON SIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED ON THE BASIS OF THE PRINCIPLES LAID DOWN BY APEX COURT IN THE CASE OF IN THE CASE OF P.V. KALYA NA SUNDARAM (2007) 294 ITR 49 (SC) AND IN THE CASE OF K.P. VARGHESE VS. IT O (1981) 139 ITR 597 (SC) AND IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECOR D. THIS TRIBUNAL CANNOT RE- EXAMINE OR REVIEW ITS OWN DECISION. THEREFORE, FOR EFFECTIVE DISPOSAL OF THE APPEALS, THIS TRIBUNAL NEEDS TO RECALL ITS ORDERS S O THAT THE CORRECT FACTUAL POSITION MAY BE BROUGHT ON RECORD. THIS TRIBUNAL B EING THE FINAL FACT FINDING AUTHORITY, THE FACTS HAVE TO BE CLEARLY SET OUT IN THE ORDER OF THIS TRIBUNAL. OTHERWISE, THE APPELLATE FORUM MAY FIND IT DIFFICULT TO APPRECIATE THE CONTENTION OF BOTH THE PARTIES. THEREFORE, FOR EFFECTIVE DISPOSAL OF THE APPEALS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDERS OF THE TRIBUNAL NEED TO BE RECALLED. BY RECALLING THE ORD ER AND GIVING ONE MORE OPPORTUNITY TO BOTH PARTIES MAY NOT CAUSE ANY PREJUD ICE TO EITHER THE 7 MA NOS.36-41 & 62-67/COCH/2012 TAXPAYERS OR THE DEPARTMENT. IN FACT, BY GIVING SU CH AN OPPORTUNITY MAY PROMOTE THE CAUSE OF JUSTICE. IT MAY BE OPEN TO BOT H PARTIES TO PLACE ON RECORD THE MATERIALS TO CANVASS THEIR CASE. THEREF ORE, TO RECTIFY THE FACTUAL ERROR WHICH CREPT IN THE ORDER OF THE TRIBUNAL, THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDERS SHALL BE RECALLE D. ACCORDINGLY, THE ORDERS OF THIS TRIBUNAL ALL DATED 25-08-2011 ARE RE CALLED AND THE MISCELLANEOUS APPLICATIONS OF THE REVENUE AS WELL A S THE TAXPAYERS ARE ALLOWED. 5. NOW ALL THE APPEALS OF THE TAXPAYERS STAND RESTO RED ON THE FILE OF THE TRIBUNAL. THE REGISTRY IS DIRECTED TO POST THE APP EALS IN ITA NOS.718&719/COCH/2010; 724&725/COCH/2010; AND 737&7 38/COCH/2010 FOR FINAL DISPOSAL ON 10/12/2012. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH NOVEMBER, 2012. (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH NOVEMBER, 2012 PK/- 8 MA NOS.36-41 & 62-67/COCH/2012 COPY TO: 1. THE APPLICANTS 2. THE RESPONDENT 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