Dated This The 14[Th] Day Of July, 2014 v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936 WP(C).No. 10818 of 2014 (B) --------------------------------------- PETITIONER(S): ---------------------- JOSE KURUVINAKUNNEL, PARTNER, HOTEL MAYURA, POOVARANI, PALAI, KOTTAYAM. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT(S): ------------------------- 1. THE INCOME TAX OFFICER, WARD NO 2. PUBLIC LIBRARY BUILDING, KOTTAYAM 686001. 2. THE INCOME TAX APPELLATE TRIBUNAL, COCHIH BENCH, KENDRIYA BHAVAN, KOCHI 682037 COCHIH BENCH, KENDRIYA BHAVAN, KOCHI 682037 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 10818 of 2014 (B) ---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEAR 1996-97 DATED 10-03-1999YEAR 1996-97 DATED 10-03-1999 EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEAR 1997-98 DATED 26-03-2004YEAR 1997-98 DATED 26-03-2004 EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEAR 1998-99 DATED 26-03-2004YEAR 1998-99 DATED 26-03-2004 EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEAR 1999-2000 DATED 26-03-2004YEAR 1999-2000 DATED 26-03-2004 EXHIBIT P5 TRUE COPY OF THE GROUNDS OF THE APPEAL FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHIINCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI EXHIBIT P6 TRUE COPY OF THE GROUNDS OF THE APPEAL FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHIINCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI EXHIBIT P7 TRUE COPY OF THE GROUNDS OF THE APPEAL FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHIINCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI EXHIBIT P8 TRUE COPY OF THE GROUNDS OF THE APPEAL FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHIINCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI EXHIBIT P9 TRUE COPY OF THE ARGUMENT NOTES EXCLUDING THE PAPER BOOK/ANNEXURES FILED BY THE PETITIONER BEFORE THE HON'BLETRIBUNAL FOR ASSESSMENT YEARS 1996-97 TO 1999-2000BOOK/ANNEXURES FILED BY THE PETITIONER BEFORE THE HON'BLETRIBUNAL FOR ASSESSMENT YEARS 1996-97 TO 1999-2000 EXHIBIT P10 TRUE COPY OF THE ARGUMENT NOTES EXCLUDING THE PAPER BOOK/ANNEXURES FILED BY THE PETITIONER BEFORE THE HON'BLETRIBUNAL FOR ASSESSMENT YEARS 1996-97 TO 1999-2000BOOK/ANNEXURES FILED BY THE PETITIONER BEFORE THE HON'BLETRIBUNAL FOR ASSESSMENT YEARS 1996-97 TO 1999-2000 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 20-09-2013 PASSED BY THE 2ND RESPONDENTRESPONDENT EXHIBIT P12 TRUE COPY OF THE PETITIONS AND AFFIDAVITS DATED 06-12-2013 FOR THE ASSESSMENT YEAR 1996-97 FOR THE ASSESSMENT YEAR 1996-97 EXHIBIT P13 TRUE COPY OF THE PETITIONS AND AFFIDAVITS DATED 06-12-2013 FOR THE ASSESSMENT YEAR 1997-98FOR THE ASSESSMENT YEAR 1997-98 EXHIBIT P14 TRUE COPY OF THE PETITIONS AND AFFIDAVITS DATED 06-12-2013 FOR THE ASSESSMENT YEAR 1998-99FOR THE ASSESSMENT YEAR 1998-99 EXHIBIT P15 TRUE COPY OF THE PETITIONS AND AFFIDAVITS DATED 06-12-2013 FOR THE ASSESSMENT YEAR 1999-2000FOR THE ASSESSMENT YEAR 1999-2000 PJ EXHIBIT P16 TRUE COPY OF THE ANNEXURE II MENTIONED AND FILED ALONG WITH EXT P12WITH EXT P12 EXHIBIT P17 TRUE COPY OF THE COMMON ORDER DATED 07-02-104 EXHIBIT P18 TRUE COPY OF THE REPRESENTATION MADE BEFORE THE HON'BLE TRIBUNALTRIBUNAL EXHIBIT P19TRUE COPY OF THE ORDER OF ASSESSMENT (TYPED) COMPLETED ON FRANCIS JOSEPH ON THE PEAK CREDIT LYING IN ACCOUNT NO.3075 OF FRANCIS JOSEPHON FRANCIS JOSEPH ON THE PEAK CREDIT LYING IN ACCOUNT NO.3075 OF FRANCIS JOSEPH EXHIBIT P20TRUE COPY OF THE PETITION DATED 15/3/2004 ALONG WITH AFFIDAVIT FILED BEFORE THE 1ST RESPONDENTAFFIDAVIT FILED BEFORE THE 1ST RESPONDENT EXHIBIT P15 TRUE COPY OF THE PETITIONS AND AFFIDAVITS DATED 06-12-2013 FOR THE ASSESSMENT YEAR 1999-2000FOR THE ASSESSMENT YEAR 1999-2000 PJ EXHIBIT P16 TRUE COPY OF THE ANNEXURE II MENTIONED AND FILED ALONG WITH EXT P12WITH EXT P12 EXHIBIT P17 TRUE COPY OF THE COMMON ORDER DATED 07-02-104 EXHIBIT P18 TRUE COPY OF THE REPRESENTATION MADE BEFORE THE HON'BLE TRIBUNALTRIBUNAL EXHIBIT P19TRUE COPY OF THE ORDER OF ASSESSMENT (TYPED) COMPLETED ON FRANCIS JOSEPH ON THE PEAK CREDIT LYING IN ACCOUNT NO.3075 OF FRANCIS JOSEPHON FRANCIS JOSEPH ON THE PEAK CREDIT LYING IN ACCOUNT NO.3075 OF FRANCIS JOSEPH EXHIBIT P20TRUE COPY OF THE PETITION DATED 15/3/2004 ALONG WITH AFFIDAVIT FILED BEFORE THE 1ST RESPONDENTAFFIDAVIT FILED BEFORE THE 1ST RESPONDENT EXHIBIT P21TRUE COPY OF THE PROCEEDINGS OF THE CENTRAL PUBLIC INFORMATION OFFICER NAMELY COMMISSIONER OF INCOME TAX REJECTING THE REQUEST DATED 24/1/2006INFORMATION OFFICER NAMELY COMMISSIONER OF INCOME TAX REJECTING THE REQUEST DATED 24/1/2006 EXHIBIT P22TRUE COPY OF THE ORDER OF ASSESSMENT UNDER SECTION 144 R/W SECTION 147 DATED 26/3/2004 FOR THE ASSESSMENT YEAR 1996-97.R/W SECTION 147 DATED 26/3/2004 FOR THE ASSESSMENT YEAR 1996-97. RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. / TRUE COPY / P.S. TO JUDGE ------------------------------------ ------------------------------------ Dated this the 14[th] day of July, 2014 JUDGMENT The petitioner is aggrieved by Exhibit P17 order passedby the Income Tax Appellate Tribunal in a rectification applicationfiled by the petitioner. The appeals filed by the petitioner againstthe re-opened assessments for the years 1996-97 to 2000-01, wereconcluded by Exhibit P11. The petitioner filed a rectificationapplication, mainly on three grounds; (i) that the account of oneSri.Francis Joseph, brother-in-law of the petitioner, was found to beactually owned and operated by the petitioner, without looking intothe decision of the Hon'ble Supreme Court in CIT v.K.Chinnathamban [(2007) 292 ITR 682 (SC)]; (ii) that cashcredit additions were made without looking into the High Courtdecisions placed on record by the assessee; and (iii) that one otherbrother-in-law, being Sri.George Joseph, had specifically accepted aloan granted to the petitioner, which was not considered on thebasis of the dictum of the decisions placed by the petitioner beforethe Tribunal. 2. Essentially the contention is that, the dictum of the decisions placed by the petitioner were not looked into by theTribunal before disposing of the appeals and, hence, the samewould be a ground for rectification. The petitioner also placesbefore this Court a decision of the Hon'ble Supreme Court inAsst.CIT v. Saurashtra Kutch Stock Exchange Ltd. [(2008)305 ITR 227 (SC)]. 3. In Saurashtra Kutch Stock Exchange Ltd.(supra), the Tribunal decided an appeal of the assessee on October27, 2000. Just prior to the decision having been rendered by theTribunal, the jurisdictional High Court had passed a judgment in asimilar matter, on the question regarding exemption, which arosein the appeal. The appellant/assessee filed a rectificationapplication, which was allowed by the Tribunal. The Departmentwas in appeal before the Supreme Court. The Hon'ble SupremeCourt found that when the decision of the jurisdictional High Courtwas not looked into by the Tribunal and there is non-considerationof such decision, definitely a rectification application could be filed,to call upon the Tribunal to consider the same. 4. The facts in Saurashtra Kutch Stock Exchange 3. In Saurashtra Kutch Stock Exchange Ltd.(supra), the Tribunal decided an appeal of the assessee on October27, 2000. Just prior to the decision having been rendered by theTribunal, the jurisdictional High Court had passed a judgment in asimilar matter, on the question regarding exemption, which arosein the appeal. The appellant/assessee filed a rectificationapplication, which was allowed by the Tribunal. The Departmentwas in appeal before the Supreme Court. The Hon'ble SupremeCourt found that when the decision of the jurisdictional High Courtwas not looked into by the Tribunal and there is non-considerationof such decision, definitely a rectification application could be filed,to call upon the Tribunal to consider the same. 4. The facts in Saurashtra Kutch Stock Exchange Ltd. (supra) are clearly distinguishable. Herein, the contention ofthe petitioner is that there is no reasoning in so far as the decisionsplaced before the Tribunal being repelled as not applicable. ExhibitP11 order of the Tribunal, in appeal, discloses that the decisionsplaced by the petitioner were specifically referred to. The factsrelating to each of the grounds, raised subsequently in therectification application, were also gone into. On an appraisal of thefacts, it was found that the decisions placed by the assessee werenot applicable to the facts. The petitioner's grievance seems to bein so far as the Tribunal having not elaborately considered thedictum of the various decisions and negatived the applicability; onsufficient reasoning. 5. That, however, is a matter to be agitated in appealand not in a rectification application. This Court cannot assume thatmerely for the reason that the Tribunal found that the decisions arenot applicable, the Tribunal would not have gone into the dictumlaid down therein. The grievance of the petitioner stems more fromthe quality of the discussion made by the Tribunal. The Hon'ble Supreme Court in the afore-cited decision was concerned with thedecision of the jurisdictional High court, having not even beenplaced before the Tribunal; which led to a rectification on noticingthe same. In the above circumstances, this Court is of the opinion that the rectification application filed was, rightly dismissed by theTribunal. However, this Court would hasten to add that this Courthas not looked into the various grounds raised by the petitioner;nor would it be within the scope of the present writ petition, whichassails the rejection of the rectification application alone. Leavingopen the liberty of the petitioner, to agitate his contentions onmerits, before the appropriate forum, the writ petition standsdismissed. Parties are left to suffer their respective costs. vku/- Sd/- K.Vinod Chandran Judge. ( true copy )