M/s.Silver Star Sea Foods Ltd, Alappuzha V. The ITO, Alappuzha

MA 83/COCH/2015

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6180 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M V RUDRAN
• Assessee Lawyers: C B M WARRIER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE GEORGE K, JM MA NO. 83 /COCH/201 5 : ASST.YEAR 200 4 - 200 5 (ARISING OUT OF ITA NO. 763 /COCH/201 3 ) M/S. SILVER STAR SEAFOODS LTD ANWAR PALACE, CHANDIROOR CHERTHALA ALAPPUZHA 688 547. PAN : AAECS5858F . VS. THE INCOME TAX OFFICER WAD 1 ALAPPUZHA. ( APPLICANT ) (RESPONDENT) APPLICANT BY : SRI. C.B.M.WARRIER, CA RESPONDENT BY : SRI. M.V.RUDRAN, ADDL.CIT - DR DATE OF HEARING : 16 .03.2018 DATE OF PRONOUNCEMENT : 16 .03.2018. O R D E R PER GEORGE GEORGE K, JM THIS MISCELLANEOUS PETITION AT THE INSTANCE OF THE ASSESSEE ARISES OUT OF ITAT S ORDER DATED 08.10.2015 IN ITA NO.763/COCH/2013. THE RELEVANT ASSESSMENT YEAR IS 2004 - 2005. 2. BRIEF FACTS OF THE CASE ARE AS FOLLOW: - 2.1 THE ASSESSEE IS A COMPANY, WHO IS A DEALER IN SEAFOOD. FOR THE ASSESSMENT YEAR 2004 - 2005, THE RETURN OF INCOME WAS FILED DISCLOSING AN INCOME OF RS. 85,370. AS PER THE INCOME AND EXPENDITURE ACCOUNT FILED ALONG WITH THE RETURN OF INCOME, THE OPENING STOCK WAS SHOWN AT RS.24.1 LAKH AND CLOSING STOCK WAS SHOWN AT RS.17.20 LAKH. THE SALES DURING THE RELEVANT PREVIOUS M A NO. 83 / COCH /201 5 M/S. SILVER STAR SEA FOODS LIMITED . 2 YEAR WAS SHOWN ONLY AT RS.85,000. IT W AS NOTICED BY THE ASSESSING OFFICER THAT THE CLOSING STOCK AS PER FORM 3CD ATTACHED TO THE RETURN OF INCOME FOR ASST.YEAR 2003 - 2004 WA S `NIL AS ON 31.03.2004 , WHEREAS A SUM OF RS.24,10,195 WAS SHOWN AS OPENING STOCK AS PER THE INCOME AND EXPENDITURE AC COUNT ATTACHED ALONG WITH THE RETURN OF INCOME FOR ASST.YEAR 2004 - 2005. THE ASSESSING OFFICER NOTICED CERTAIN ANOMALIES IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER NOTICED THAT FOR THE A.Y. 2003 - 2004, THE SALES WAS TO THE TUNE OF RS.2.7 CRORE FOR AN OPENING STOCK OF RS.78 LAKH . SINCE FORM 3CD ATTACHED TO THE RETURN OF INCOME FOR ASST.YEAR 2003 - 2004 HAD DISCLOSED CLOSING STOCK AT ` NIL AS ON 31.03.2003, THE ASSESSING OFFICER TOOK ` NIL OPENING STOCK FOR ASST.YEAR 2004 - 2005 AND ADDED THE SAME AS INCOME DURING T HE IMPUGNED ASSESSMENT YEAR. THE VIEW TAKEN BY THE ASSESSING OFFICER WAS AFFIRMED BY THE CIT(A). ON FURTHER APPEAL BY THE ASSESSEE, THE TRIBUNAL CONFIRMED THE CIT(A)S ORDER. 3. AGGRIEVED BY THE ORDER OF THE ITAT CONFIRMING THE ADDITION OF RS.24,10,195 O N ACCOUNT OF TAKING OPENING STOCK AT NIL, THE ASSESSEE HAS PREFERRED THIS MISCELLANEOUS PETITION. THE CONTENTIONS RAISED BY THE ASSESSEE IN THE COURSE OF ARGUING THE MISCELLANEOUS PETITION READS AS FOLLOW: - 1. IN THE APPELLATE ORDER THE HONORABLE BENCH HAS ACCEPTED THE ORDER OF ASSESSING OFFICER THAT OPENING STOCK OF 24.10 LAKHS AS PER THE STATEMENT OF ACCOUNTS IS NOT CORRECT AND OPENING STOCK IS NIL. 2. IT IS ALSO DECIDED THAT, THERE ARE NO PURCHASES DURING TH E YEAR AND SALES OF RS.85000/ - IS ACCOUNTED M A NO. 83 / COCH /201 5 M/S. SILVER STAR SEA FOODS LIMITED . 3 3. THE ITEMS IN THE CLOSING STOCK ARE SEAFOOD ITEMS, WHICH ARE HIGHLY PERISHABLE. THE CLOSING STOCK OF RS.17.20 LAKHS AS ON 31.03.2004 SHOULD HAVE BEEN CONSIDERED AS NIL IN VIEW OF THE FACT THAT, THERE IS NO O PENING STOCK AND PURCHASES. THE ABOVE SUBMISSION BEFORE THE HONORABLE BENCH IS NOT REFERRED TO IN THE APPELLATE ORDER. 4. AS PER THE APPELLATE ORDER, WHEN THE OPENING STOCK AND PURCHASES ARE NIL, THE CLOSING STOCK ALSO SHOULD HAVE BEEN NIL. AS A RESULT OF THE ABOVE, THE ADDITION OF INCOME WHISH SHOULD HAVE BEEN SUSTAINED AS PER ORDER IS THE DIFFERENCE OF RS.6.90 LAKHS, WHICH IS THE DIFFERENCE BETWEEN THE OPENING AND CLOSING STOCK. 5. BUT THE HONORABLE BENCH SUSTAINED THE ENTIRE ADDITION OF R S .24, 10 ,195/ - WHICH IS THE VALUE OF THE OPENING STOCK, WHICH IS ACCEPTED AS NONEXISTENT AS PER THE ORDER. 6. IN VIEW OF THE ABOVE THE MISTAKE IN THE APPELLATE ORDER AS DETAILED ABOVE MAY BE CORRECTED AND SUSTAIN THE ADDITION OF RS.6.90 LAKHS IN THE PLACE OF RS .24, 10 ,195/ - AS PER THE APPELLATE ORDER. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE IS NO ERROR APPARENT IN THE ORDER OF THE ITAT WARRANTING INTERFERENCE U/S 254(2) OF THE I.T.ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE PRAYER IN THE MISCELLANEOUS PETITION IS WHEN OPENING STOCK IS TAKEN AS NIL, THE CLOSING STOCK OF RS.17.2 LAKH AS ON 31.03.2004 ALSO SHOULD BE CONSIDERED AS NIL AND THE DIFFERENCE OF RS.6.9 LAKH ALONE SHOULD BE BROUGHT TO TAX. THIS CONTENTION OF THE ASSESSEE IN THE MISCELLANEOUS PETITION IS AN M A NO. 83 / COCH /201 5 M/S. SILVER STAR SEA FOODS LIMITED . 4 ALTERNATIVE PLEA RAISED FOR THE FIRST TIME . THE ALTERNATIVE CONTENTION NOW RAISED IN THE MISCELLANEOUS PETITION WAS NEVER RAISED BEFORE THE A.O., THE CIT(A) NOR B EFORE THE ITAT . WHEN THE A LTERNATIVE CONTENTION WAS NEVER RAISED BEFORE THE A.O., CIT(A) OR ITAT , IT CANNOT BE STATED THAT THERE WAS AN ERROR APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 08.10.2015 FOR NOT CONSIDERING THE ALTERNATIVE PLEA OF THE ASSESSEE . ACCORDINGLY, T HIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 16 TH DAY OF MARCH, 2018 . SD/ - SD/ - (CHANDRA POOJARI) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIAL MEMBER C OCHIN ; DATED : 16 TH MARCH, 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT(A) - IV , KOCHI. 4. THE CIT, TRIVANDRUM . 5. DR, ITAT, COCHIN 6. GUARD FILE.