In Income Tax Officer v. Nilofer Hameed & Another,[2003] 262 Itr 281. Henc

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940 ITA.No. 301 of 2002 AGAINST THE ORDER/JUDGMENT IN ITA 595/1995 ofI.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S: THE COMMISSIONER OF INCOMETAX,THIRUVANANTHAPURAM. BY ADVS. SRI PKR MENON, SR.COUNSEL FOR GO TAXESSRI.GEORGE K. GEORGE, SC FOR ITSRI.JOSE JOSEPH SC FOR INCOME TAX RESPONDENT/S: 1G.OOMMEN,PUTHOOR, KOTTARAKKARA. 2*BABU OOMMEN,M/S.ALPHONSE CASHEW INDUSTRIES, PUTHOOR P.O., KOTTARAKKARA. 3*JOHNSON G.OOMMEN,M/S.ST.GREGORIOUS CASHEW INDUSTRIES, PUTHOOR P.O., KOTTARAKKARA. 4*JOSE G.OOMMEN,VAROOR MADATHILAZHIKATH VEEDU, PUTHOOR P.O., KOTTARAKKARA.VAROOR MADATHILAZHIKATH VEEDU, PUTHOOR P.O., KOTTARAKKARA. 5*JOB G.OOMMEN,M/S.PENIEL CASHEW COMPANY, PUTHOOR P.O., KOTTARAKKARA.M/S.PENIEL CASHEW COMPANY, PUTHOOR P.O., KOTTARAKKARA. 6*JAMES G.OOMMEN,ST.PAUL'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA.ST.PAUL'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA. 7*JELSON G.OOMMEN,M/S.ST.MARY'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA.M/S.ST.MARY'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA. 8*JESSY ABRAHAM,KOTTARAKKARA.KOTTARAKKARA. SANTHI BHAVAN, CHBIRATTAKONAM, THALACHIRA P.O., *ADDL. R2 TO R8 ARE IMPLEADED AS PER ORDER DATED 04/12/2018 IN IA NO. 1906/11 IN ITA NO. 301/2002. BY ADVS.SRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.M.GOPIKRISHNAN NAMBIARSRI.P.BENNY THOMASSRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.M.GOPIKRISHNAN NAMBIARSRI.P.BENNY THOMAS SRI.P.GOPINATH SRI RAJA KANNAN OTHER PRESENT: THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON04.12.2018, ALONG WITH ITA.321/2002, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940 ITA.No. 321 of 2002 AGAINST THE ORDER/JUDGMENT IN ITA 611/1995 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 29-04-2002 APPELLANT/S: THE COMMISSIONER OF INCOME TAX,TVM.THIRUVANANTHAPURAM. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES)SRI.GEORGE K. GEORGE SC FOR ITSRI.JOSE JOSEPH SC FOR INCOME TAX RESPONDENT/S: 1G.OOMMEN,PUTHOOR,KOTTARAKKARA. 2*BABU OOMMEN,M/S. ALPHONSE CASHEW INDUSTRIES, PUTHOOR P.O., KOTTARAKKARA. 3*JOHNSON G. OOMMEN,KOTTARAKKARA. M/S. GREGORIOUS CASHEW INDUSTRIES, PUTHOOR P.O., 4*SRI. JOSE G. OOMMEN,VAROOR MADATHILAZHIKATH VEEDU, PUTHOOR P.O., KOTTARAKKARA.VAROOR MADATHILAZHIKATH VEEDU, PUTHOOR P.O., KOTTARAKKARA. 5*JOB G. OOMMEN,M/S. PENIEL CASHEW COMPANY, PUTHOOR P.O., KOTTARAKKARA. 6*JAMES G. OOMMEN,ST. PAUL'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA. 7*JELSON G. OOMMEN,M/S. ST. MARY'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA.M/S. ST. MARY'S CASHEW FACTORY, PUTHOOR P.O., KOTTARAKKARA. 8*JESSY ABRAHAM,SANTHI BHAVAN, CHBIRATTAKONAM, THALACHIRA P.O., KOTTARAKKARA. --------------------------------------------------- *ADDITIONAL R2 TO R8 ARE IMPLEDADED AS PER ORDER DATED 04/12/2018 IN IA 1904/11 IN ITA 321/02. BY ADVS.SRI.JOSON MANAVALAN SRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.M.GOPIKRISHNAN NAMBIARSRI.P.BENNY THOMASSRI.P.GOPINATHSRI.RAJA KANNAN THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON04.12.2018, ALONG WITH ITA.301/2002, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: JUDGMENT [ITA 301/2002 ,ITA.321/2002] Vinod Chandran, J. Two appeals filed by the Revenue arising from thevery same assessment year being 1986-87. The issue relates to the additions made of three unexplainedcredits, respectively from Annamma Thomas, M.J.Philipand K.A.Thomas, totaling Rs.7,76,502/-. The Assessing Officer added on the same in a re-assessmentproceedings under Section 147 of the Income Tax Act, BY ADVS.SRI.JOSON MANAVALAN SRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.M.GOPIKRISHNAN NAMBIARSRI.P.BENNY THOMASSRI.P.GOPINATHSRI.RAJA KANNAN THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON04.12.2018, ALONG WITH ITA.301/2002, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: JUDGMENT [ITA 301/2002 ,ITA.321/2002] Vinod Chandran, J. Two appeals filed by the Revenue arising from thevery same assessment year being 1986-87. The issue relates to the additions made of three unexplainedcredits, respectively from Annamma Thomas, M.J.Philipand K.A.Thomas, totaling Rs.7,76,502/-. The Assessing Officer added on the same in a re-assessmentproceedings under Section 147 of the Income Tax Act, 1961 (for short “the Act”). The assessee contendedthat during the assessment year as the provisions stood, there was only eight years available for the Department to take out proceedings under Section 147.The same stood amended in the year 1989 as ten years. The First Appellate Authority refused to accept the contention and held that the ten year period would apply insofar as the limitation having stood extendedby the specific provision. On the additions made, that claimed from Annamma Thomas was confirmed. However, the additions with respect to M.J.Philip and K.A.Thomaswere deleted. 2.The assessee approached the Tribunal. TheTribunal relying on a Single Judge judgment of thisCourt, allowed the appeal finding that the extendedlimitation cannot apply to an year previous to theamendment. However, later a Division Bench of thisCourt reversed the judgment of the learned Single Judge in Income Tax Officer v. Nilofer Hameed & another,[2003] 262 ITR 281. Hence, on the aspect oflimitation, we have to hold against the assessee and infavour of the Revenue. 3.The First Appellate Authority, considered theunexplained credit as claimed against Annamma Thomasand found that the assessee is assessed to wealth taxassessment, in which also the very same credit was heldto be unexplained. Hence, there was no cause tointerfere with the same. On the question of unexplainedcredit from Annamma Thomas, we notice that the Tribunalnoticed the wealth tax assessment, but however foundthat the tax liability insofar as wealth tax is negligible and hence there could be no estoppel againstthe assessee on that count alone. We do not think thatthe same is a reasonable ground, when the wealth taxassessment has acquired finality as against theassessee on the very same ground. 4.On the unexplained credit as againstM.J.Philip, it was found that this was not an information available to the Assessing Officer at the time the proceedings were initiated. The informationas to the said unexplained credit came to the notice ofthe Assessing Officer in the course of the re-assessment proceedings. The Tribunal failed to notice the Explanation to Section 147 on that aspect.Further, we also notice that there was nothing stated about the deletion of unexplained credit fromK.A.Thomas. In such circumstances, there has to benecessarily a remand insofar as the appeal and thecross-objection filed by the Revenue only on thequestion of the unexplained credits. With respect toM.J.Philip and K.A.Thomas, the addition deleted by theFirst Appellate Authority, was challenged in cross-appeal by the Revenue. We notice that as far as information available to the Assessing Officer at the time the proceedings were initiated. The informationas to the said unexplained credit came to the notice ofthe Assessing Officer in the course of the re-assessment proceedings. The Tribunal failed to notice the Explanation to Section 147 on that aspect.Further, we also notice that there was nothing stated about the deletion of unexplained credit fromK.A.Thomas. In such circumstances, there has to benecessarily a remand insofar as the appeal and thecross-objection filed by the Revenue only on thequestion of the unexplained credits. With respect toM.J.Philip and K.A.Thomas, the addition deleted by theFirst Appellate Authority, was challenged in cross-appeal by the Revenue. We notice that as far as the appeal of the assessee on the question oflimitation, we have already answered the questionagainst the assessee and in favour of the Revenue.Considering the fact that we are remanding two otherunexplained credits for fresh consideration, we arealso of the opinion that; that of Smt Annamma alsoshould be left open to be considered by the Tribunal.Hence, answering the question of limitation in favourof the Revenue and against the assessee, the appealbefore the Tribunal is restored and so is thecross-objection restored. No order as to costs. Sd/- K.VINOD CHANDRAN JUDGE dkr Sd/- ASHOK MENON JUDGE APPENDIX OF ITA 301/2002 PETITIONER'S/S EXHIBITS: ANNEXURE-ATRUE COPY OF THE ORDER OF THE ASSESSING OFFICER DATED 26/2/1993. ANNEXURE-B TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) DATED 28/4/1995. ANNEXURE-CTRUE COPY OF THE ORDER F THE APPELLATE TRIBUNAL DATED 29/4/2002. APPENDIX OF ITA 321/2002 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF THE ORDER OF THE ASSESSING OFFICER DATED 26/02/1993. ANNEXURE-B TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) DATED 28/04/1995. ANNEXURE-C TRUE COPY OF THE ORDER OF THE APPELLATE TRIBUNAL DATED 29/04/2002.