Nayyar Patel, Ernakulam V. ACIT (INV), Ernakulam

MA 68/COCH/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3726 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-06-2010
• Assessment Year: misc
• Appeal Filed On: 17-06-2009
• Court: TRIBUNAL
• Department Lawyers: DR BABU JOSEPHSR
• Assessee Lawyers: C B M WARRIARCA
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA M.P.NO.68/COCH/2009 (ARISING OUT OF I.T.(S&S)A.NO.67/COCH/200) BLOCK PERIOD:1989-90 TO 1998-99 NAYYAR PATEL, ERNAKULAM. PA NO.AFRPP 28889N VS. THE ASST. COMMISSIONER OF INCOME-TAX, INV.,CIR.2, DIVISION I., ERNAKULAM. ( PETITIONER ) ( RESPONDENT ) PETITIONER BY SHRI CBM WARRIAR,CA RESPONDENT BY DR. BABU JOSEPH,SR.DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS MISCELLANEOUS PETITION BY THE ASSESSEE IS FOR THE SIMPLE REASON THAT WHAT WOULD BE THE INITIAL CAPITA L FOR THE PURPOSE OF COMPUTING THE BLOCK ASSESSMENT. 2. WE HEARD LD. COUNSEL FOR THE ASSESSEE AND THE SR .D.R. FOR THE REVENUE. FIRST OF ALL WE WANT TO OBSERVE THAT THIS MISCELLANEOUS PETITION, IF AT ALL REQUIRED, SHOULD HAVE BEEN FILED BY THE DEPARTMENT FOR CLARIFICATION. THE D EPARTMENT DROVE THE ASSESSEE UNDER THE COMPELLING CIRCUMSTANC ES TO FILE THIS MISCELLANEOUS PETITION ON THE SIMPLE ISSU E OF TAKING MP NO. 68/COCH/2009 2 THE INITIAL CAPITAL. THE ONLY ISSUE IN THE ORIGIN AL APPEAL WAS THAT THE ASSESSEE CLAIMED INITIAL CAPITAL AT RS.11, 84,000/- WHEREAS THE TRIBUNAL RESTRICTED THE INITIAL CAPITAL BENEFIT TO THE EXTENT OF ONLY RS. 7 LAKHS. THIS WAS AGAIN TIN KERED WITH BY THE ASSESSING OFFICER WITHOUT GETTING ANY CLARIF ICATION FROM THE SUPERIOR OFFICERS OR BY WAY OF A MISCELLAN EOUS PETITION AND ORDER GIVING EFFECT TO THE ORDER OF TH E TRIBUNAL WAS PASSED ON 25-2-2007 WHEREIN THE LD. ASSESSING OFFICER TAKEN THE INITIAL CAPITAL AS RS.3,30,000/-. THIS IS TOTALLY AGAINST THE SPIRIT OF THE ORDER PASSED BY THE TRIBU NAL. AGAIN AS A CASE OF RETALIATION THE INITIAL CAPITAL HAS TO BE TAKEN AS A LIMIT OF RS. 7 LAKHS WITHOUT ANY TINKERI NG AND THE ADOPTION OF INITIAL CAPITAL BY THE ASSESSING OFFICE R AT RS.3,30,000/-WHILE GIVING EFFECT TO THE ORDER OF TH E TRIBUNAL VIDE HIS ORDER DATED 25-2-2007 IS TOTALLY UNJUSTIFI ED. HENCE, THIS CLARIFICATION IS ISSUED AT THE INSTANCE OF THE ASSESSEE WHICH WOULD BE A BETTER CASE IF THE ASSESS ING OFFICER OR THE DEPARTMENT MOVED THIS MISCELLANEOUS PETITION. WITHOUT MOVING THE MISCELLANEOUS PETITION FOR CLARI FICATION, THE ASSESSING OFFICER HIMSELF ASSUMED THAT THE INIT IAL CAPITAL AFTER GIVING SO MUCH OF DELIBERATIONS AND AFTER ACC EPTING THE ALLOWANCE GIVEN AT THE LEVEL OF CIT(APPEALS) AT RS.3,70,000/-, THE REMAINING RS.3,30,000/- WAS GIVE N AS INITIAL CAPITAL, WHICH IS NOT THE TRUE INTENTION OF THE TRIBUNAL. MP NO. 68/COCH/2009 3 THEREFORE, TO THAT EXTENT, THE CLARIFICATION IS ISS UED AND THE INITIAL CAPITAL IS TO BE TAKEN AT THE LIMIT OF RS.7 ,00,000/- INSTEAD OF RS.3,30,000/- AS ADOPTED BY THE ASSESSIN G OFFICER WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. 3. IN THE RESULT, THE MISCELLANEOUS PETITION IS ALL OWED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 14 TH JULY,2010. PM. COPY FORWARDED TO: 1. NAYYAR PATEL, XL/591, CONVENT ROAD, ERNAKULAM, KOCH I. 2. THE ACIT., INV.,CIR.2, DIVISION I., ERNAKULAM. 3. CIT(A)-V, KOCHI. 4. CIT, KOCHI. 5. D.R.