And The Learned Counsel For The Revenue v. Haryana Financial Corporation (2012) 340 Itr 288( P &H

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH &THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY, THE 4TH DAY OF JUNE 2014/14TH JYAISHTA, 1936 ITA.No. 75 of 2014 () ---------------------- (AGAINST THE ORDER/JUDGMENT IN ITA 450/2013 of I.T.A.TRIBUNAL,COCHINBENCH DATED 13-11-2013)APPELLANT(S)/APPELLANT IN I.T.A: ----------------------------------- KERALA FINANCIAL CORPORATION I, ASWATHY, VELLAYAMBALAMTRIVANDRUM 33, (PAN AA BCK 1316M) BY ADV. SRI.MOLLY JACOB, SC, KERALA FINANCIAL CO RESPONDENT(S)/RESPONDENT IN I.T.A:----------------------------------- ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), TRIVANDRUM PIN NO. 695 003. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 04-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX ANNEX.A1: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008 - 2009 DATED31/12/2010 ISSUED BY THE JOINT COMMISSIONER OF INCOME TAX, RANGE 1,TRIVANDRUM. ANNEX.A2: COPY OF THE ORDER DATED 20/3/2013 OF THE APPELLATEAUTHORITY MODIFYING THE ASSESSMENT ORDER. ANNEX.A3: COPY OF GROUNDS OF APPEAL FILED BEFORE THE INCOME TAXAPPELLATE TRIBUNAL. ANNEX.A4: COPY OF THE ORDER NO. ITA NO.450/COCH/2013 DATED 13/11/2013ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. /TRUE COPY/ PS TO JUDGE. K. M. JOSEPH & K.ABRAHAM MATHEW , JJ. =========================I.T.A. No. 75 of 2014 =========================Dated this the 4[th] day of June 2014 J U D G M E N T K. M. Joseph, J. This appeal is filed under Section 260A of theIncome Tax Act. The appellant is the Kerala FinancialCorporation. The appellant filed its return for theassessment year 2008-2009 declaring a total loss ofRs.1,37,34,398/-. The case was selected for scrutiny. Theassessing officer completed the assessment assessing a totalincome at Rs.45,54,15,830/-. In the appeal filed by theappellant before the Commissioner, partial relief wasgranted. Being aggrieved by the said order to the extentthe same confirmed the additions, the appellant preferredfurther appeal. In that appeal, the Tribunal remanded thematter back for consideration. The main issue with whichwe are concerned is the additions made in respect of OTScollection and revenue recovery collection. In respect ofthese two items, the matter was remanded to the authoritiesbelow. Following are the findings which we noticed at paragraph 4.3. of the order of the Tribunal: “4.3.We notice that the tax authorities have not examined the above said submissionsmade by the assessee. In our view, the assesseehas explained the circumstances under which ithad agreed to the proposal of the assessingofficer to assess the amount available inSuspense account. According to the assessee,the situation has changed in the instant year andit would be in a position to explain each receiptwith the documents pertaining to the concernedborrower. Under these set of fats, in our view, itmay not be proper to assess the entirecollections simply for the reason that in theearlier years, the assessee has agreed for theassessment of the amount available in Suspenseaccount. In our view, the assessing officer isobliged to consider the explanations of theassessee with reference to the terms andconditions relating to the concerned borrower and I.T.A. No.75/2014 I.T.A. No.75/2014 then only, in our view, he would be in a positionto determine about the tax ability of thesereceipts. Admittedly, this exercise has not beencarried out by the assessing officer. Before us,the assessee has furnished copies of Recoverypolicy 2007 - 08, which lists out the terms andconditions relating to OTS scheme, which alsorequires to be considered by the AO. In theabsence of basic fact relating to these receipts weare also not in a position to express any opinion.Accordingly, in our view this issue requires freshexamination at the end of the assessing officer.Accordingly, we set aside the order of Ld CIT (A)on this issue and restore the same to the file ofthe assessing officer with the direction toexamine the nature of each of the receiptsaccounted under these two heads with referenceto the relevant documents and take appropriatedecision in accordance with the law. “ 2. We heard the learned counsel for the appellant I.T.A. No.75/2014 and the learned counsel for the Revenue. 3. The learned counsel for the appellant wouldpoint out that the issue is squarely covered in favour of theappellant by virtue of the decision in Commissioner of IncomeTax v. Haryana Financial Corporation (2012) 340 ITR 288( P &H). 4. We find that this a case where actually theTribunal has not rendered finding in view of non availability ofmaterials before it and the assessing authority has beendirected to re do the matter. In such circumstances, we do notfind any reason to consider this matter. We only make it clearthat when the matter is re-done pursuant to the remand, theauthority will also consider the decision in Commissioner ofIncome Tax v. Harayana Financial Corporation(cited supra).Subject to the same the appeal is disposed of. Sd/-K. M. JOSEPH, JUDGESd/- K.ABRAHAM MATHEW, JUDGE /True copy/ P.S to Judge.