M.R.Shiji, Trichur V. DCIT, Trichur

MA 75/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9363 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 6 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: 2005-2006
• Appeal Filed On: 23-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: A S NARAYANAMURTHY
• Keywords: Opportunity of being heard
• Section: 69C; 69

Judgement Text

1 MA NOS.73 TO 79/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. NOS 73 & 74/COCH/2012 (ARISING OUT OF I.T.A NOS. 184 & 185/COCH/2010 (ASSESSMENT YEARS 2006-07 & 2007-08) SHRI K.S. SALEESH VS DY.CIT, CENT.CIR SALEESH WOOD INDUSTRIES TRICHUR PARALOM P.O., TRICHUR-680 575 PAN : AKLPS8236P (APPLICANT) (RESPONDENT) M.A. NOS 75 & 76/COCH/2012 (ARISING OUT OF I.T.A NOS. 188 & 190/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2007-08) SHRI M.R. SHIJI VS DY.CIT, CENT.CIR MRIDUL TIMBERS TRICHUR PARALOM P.O., TRICHUR-680 575 PAN : AKLPS8235Q (APPLICANT) (RESPONDENT) M.A. NOS 77 & 78/COCH/2012 (ARISING OUT OF I.T.A NOS. 195 & 196/COCH/2010 (ASSESSMENT YEARS 2006-07 & 2007-08) SHRI K.S. AJAYAN VS DY.CIT, CENT.CIR AISWARYA TIMBERS TRICHUR PARALOM P.O., TRICHUR-680 575 PAN : AEZPA5574Q (APPLICANT) (RESPONDENT) 2 MA NOS.73 TO 79/COCH/2010 APPLICANTS BY : SHRI A.S. NARAYANAMURTHY RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 16-11-2012 DATE OF PRONOUNCEMENT : 30-11-2012 O R D E R PER N.R.S. GANESAN (JM) ALL THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THREE INDEPENDENT TAXPAYERS (TWO EACH). SHRI A.S. NARAYANAMURTHY, TH E LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT THE CLAIM OF THE TAXPAY ER TO SET OFF THE BUSINESS PROFIT AGAINST THE INCOME DISCLOSED WAS RE JECTED BY THE COMMISSIONER OF INCOME-TAX(A). ACCORDING TO THE LD .REPRESENTATIVE, THE TAXPAYERS ONLY SOURCE OF INCOME WAS FROM TIMBER BU SINESS. THEREFORE, THE ADDITIONS MADE U/SS 69 AND 69C ON THE BASIS OF THE SEARCH CONDUCTED HAVE TO BE SET OFF AGAINST THE BUSINESS PROFIT. ON A QU ERY FROM THE BENCH WHETHER ANY SPECIFIC GROUND WAS RAISED BEFORE THIS TRIBUNAL FOR SETTING OFF THE ADDITIONS MADE UNDER SECTIONS 69 AND 69C AGAINS T THE BUSINESS PROFIT, THE LD.REPRESENTATIVE FOR THE TAXPAYER VERY FAIRLY SUBMITTED THAT NO SUCH SPECIFIC GROUND WAS RAISED BEFORE THIS TRIBUNAL. H OWEVER, THE LD.RPERESENTATIVE FOR THE TAXPAYER SUBMITTED THAT H E HAS ARGUED THIS POINT IN THE OPEN COURT AND HE HAS ALSO MADE A MENTION IN THE WRITTEN 3 MA NOS.73 TO 79/COCH/2010 SUBMISSIONS FILED BEFORE THIS TRIBUNAL AFTER CONCLU SION OF THE ARGUMENT. WE HEARD THE LD.DR ALSO. 2. ADMITTEDLY, THE TAXPAYERS HAVE NOT RAISED ANY GR OUND FOR SETTING OFF OF THE ADDITIONS MADE U/SS 69 AND 69C AGAINST THE B USINESS PROFIT. THE ONLY CONTENTION OF THE LD.REPRESENTATIVE FOR THE TAXPAYE RS IS THAT HE HAS ARGUED THE SAME IN THE COURT AND HE HAS ALSO RAISED THE SA ME IN THE WRITTEN SUBMISSIONS. RULE 8 OF THE INCOME-TAX (APPELLATE T RIBUNAL) RULES, 1963 SAYS THAT THE MEMORANDUM OF APPEAL SHALL SET FORTH CONSC IOUSLY UNDER THE DISTINCT HEAD THE GROUNDS OF APPEAL. RULE 11 OF INCOME-TAX(APPELLATE TRIBUNAL) RULES, 1963 ENABLES THE TRIBUNAL TO DECID E THE MATTER ON ANY GROUND WHICH WAS NOT SET FORTH IN MEMORANDUM OF APP EAL. HOWEVER, THE TRIBUNAL SHALL NOT DECIDE ANY GROUND UNLESS THE PAR TY WHO MAY BE AFFECTED THEREBY HAD A SUFFICIENT OPPORTUNITY OF BEING HEARD . FROM THE ABOVE IT IS OBVIOUS THAT THE TAXPAYER HAS TO RAISE THE GROUNDS IN THE MEMORANDUM OF APPEAL AT THE FIRST INSTANCE. IN CASE IT COULD NOT BE RAISED AFTER GETTING THE LEAVE OF THE TRIBUNAL THE TAXPAYER MAY RAISE ANY GR OUND WHICH IS ARISING OUT OF THE ORDER OF THE LOWER AUTHORITY. ONCE SUCH A G ROUND IS RAISED, THE OTHER PARTY MAY GET AN OPPORTUNITY TO RESPOND TO THE GROU NDS RAISED. IN THIS 4 MA NOS.73 TO 79/COCH/2010 CASE, NO SUCH GROUND WAS RAISED IN THE ORIGINAL MEM ORANDUM OF APPEAL AND NO ADDITIONAL GROUND WAS ALSO FILED. THEREFORE , ARGUING AN ISSUE WHICH WAS NOT RAISED IN THE ORIGINAL GROUNDS OF APPEAL OR ANY ADDITIONAL GROUND MAY TAKE THE DEPARTMENT INTO SURPRISE AND THE DEPAR TMENTAL REPRESENTATIVE MAY NOT RESPOND TO THE ARGUMENT OF T HE LD.REPRESENTATIVE / COUNSEL OF THE TAXPAYER IMMEDIATELY. SINCE THE DEP ARTMENT HAD NO OCCASION TO RESPOND TO THE ARGUMENTS SAID TO BE MAD E BY THE LD.REPRESENTATIVE IN THE OPEN COURT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE CANNOT BE ANY ORDER ON A GROUND WHICH WAS NOT RAISED IN THE GROUNDS OF APPEAL OR BY WAY OF ADDITIONAL GROUN D. THEREFORE, THERE IS NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN THE ORD ER OF THIS TRIBUNAL. ACCORDINGLY WE FIND NO MERIT IN THE MISCELLANEOUS A PPLICATIONS FILED BY THE TAXPAYERS. HENCE, ALL THE MISCELLANEOUS APPLICATIO NS 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/- 5 MA NOS.73 TO 79/COCH/2010 COPY TO: 1. THE APPELLANT 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