Ita/13/2023 Of Malabar Cements Limited v. Assistant Commissioner Of Income-Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21 DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ITA NO. 8 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITEDAGED 54 YEARSWALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - ), PIN - 678624BY ADVS.ABRAHAM JOSEPH MARKOSV.ABRAHAM MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARAJOHN VITHAYATHILAIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAXPALAKKAD, PIN – 678001 BY ADVS.KEERTHIVAS GIRI SC-P.G.JAYASHANKAR. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSIONON 21.05.2024, ALONG WITH ITA.11/2023, 12/2023 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.TUESDAY, THE 21 DAY OF MAY 2024 / 31ST VAISAKHA, 1946ITA NO. 11 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITEDAGED 54 YEARSAABCM5814C)., PIN – 678624 WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - BY ADVS.ABRAHAM JOSEPH MARKOSV.ABRAHAM MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARAJOHN VITHAYATHILAIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAXPALAKKAD, PIN – 678001 BY ADVS.ADV. P.G. JAYASHANKAR PGJKEERTHIVAS GIRI THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSIONON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21 DAY OF MAY 2024 / 31ST VAISAKHA, 1946ITA NO. 12 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITEDAABCM5814C), PIN - 678624BY ADVS.ABRAHAM JOSEPH MARKOSV.ABRAHAM MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARAJOHN VITHAYATHILAIBEL MATHEW SIBY WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAXPALAKKAD., PIN – 678001 BY ADV KEERTHIVAS GIRISC SRI.P.G JAYASHANKAR THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSIONON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.TUESDAY, THE 21 DAY OF MAY 2024 / 31ST VAISAKHA, 1946ITA NO. 13 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITEDAGED 54 YEARSWALAYAR, PUDUSSERY EAST, PALAKKAD (PAN- ), PIN - 678624BY ADVS.ABRAHAM JOSEPH MARKOSV.ABRAHAM MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARAJOHN VITHAYATHILAIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAXPALAKKAD, PIN – 678001 BY ADVS.ADV. P.G. JAYASHANKAR KEERTHIVAS GIRI THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSIONON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA Nos.8,11,12 and 13 of 2023 J U D G M E N T============ Dated this the 21[st] day of May, 2024 [ITA Nos.8/2023, 11/2023, 12/2023, 13/2023] Dr. A.K.Jayasankaran Nambiar, J. In all these appeals the appellant/assessee-MalabarCements Ltd impugns the order dated12.12.2022 of theIncome Tax Appellate Tribunal, Cochin Bench for theassessment years 2011-12, 2012-13, 2016-17 and 2017-18. RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAXPALAKKAD, PIN – 678001 BY ADVS.ADV. P.G. JAYASHANKAR KEERTHIVAS GIRI THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSIONON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA Nos.8,11,12 and 13 of 2023 J U D G M E N T============ Dated this the 21[st] day of May, 2024 [ITA Nos.8/2023, 11/2023, 12/2023, 13/2023] Dr. A.K.Jayasankaran Nambiar, J. In all these appeals the appellant/assessee-MalabarCements Ltd impugns the order dated12.12.2022 of theIncome Tax Appellate Tribunal, Cochin Bench for theassessment years 2011-12, 2012-13, 2016-17 and 2017-18. 2. The learned Senior Counsel appearing on behalf ofthe appellant points out that these appeals have essentially tobe remanded back to the Appellate Tribunal for a decision onmerits, since the Appellate Tribunal in the impugned order hasnot considered the contentions of the assessee on the merits ofthe claim for depreciation on spare parts solely because,according to the Tribunal, there was no evidence produced bythe assessee in support of its claim for depreciation. It is the submission of the learned Senior Counsel that the evidence to support the contentions of the appellant/assessee on meritswas in fact produced before the Tribunal through an e-mailsent from the office of the Chartered Accountant (authorisedrepresentative of the appellant) on 02.12.2022, a copy ofwhich e-mail, together with the notes on submissions, isproduced along with these appeals as Annexure E. 3. The learned Senior Counsel further points out that it is apparent from a reading of the impugned order of theTribunal that the members of the Tribunal did not have theoccasion to go through the said evidence as it was not placedbefore them. He therefore prays that the impugned order ofthe Tribunal be set aside on the issue relating to the claim fordepreciation, and the matter remanded to the Tribunal for afresh consideration on merits in the light of the evidence thatwas in fact produced before the Tribunal. 4. We have heard Sri.P.G. Jayashankar, the learnedStanding Counsel for the Income Tax Department. 5. On a consideration of the rival submissions, we are ofthe view that in as much as the Appellate Tribunal did notconsider the claim for the appellant for depreciation on meritsby citing the non production of evidence by the appellant as areason for not discussing the matter on merits, and we findthat as a matter of fact the evidence supporting the claim fordepreciation had actually been filed before the Tribunalthrough Annexure E e-mail which is produced before us inthese appeals, the ends of justice would require as to remandthe matter back to the Tribunal for a fresh consideration of theclaim for depreciation made by the appellant on merits afterconsidering the said evidence produced by the appellant. 5. Thus, without going into the merits of the case beforeus and without answering the questions of law raised in theseappeals, we set aside the common order of the AppellateTribunal on the issue of depreciation for the variousassessment years aforementioned, and remand the said issuefor fresh consideration by the Tribunal. The Appellate Tribunalshall pass fresh orders in the matter, after considering theevidence produced by the appellant before it, within three months from the date of receipt of a copy of this judgment. Toenable the Appellate Tribunal to pass fresh orders without anydelay, the appellant is also directed to furnish a fresh set of thedocuments produced along with Annexure-E e-mail forconsideration before the Tribunal within two weeks from thedate of receipt of a copy of this judgment. We make it clearthat the other issues considered by the Tribunal, and whichare not impugned in these appeals, shall be treated as finallydecided by the common order of the appellate tribunalimpugned in these appeals. months from the date of receipt of a copy of this judgment. Toenable the Appellate Tribunal to pass fresh orders without anydelay, the appellant is also directed to furnish a fresh set of thedocuments produced along with Annexure-E e-mail forconsideration before the Tribunal within two weeks from thedate of receipt of a copy of this judgment. We make it clearthat the other issues considered by the Tribunal, and whichare not impugned in these appeals, shall be treated as finallydecided by the common order of the appellate tribunalimpugned in these appeals. The Income Tax Appeals are disposed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M. JUDGE smm APPENDIX OF ITA 8/2023 PETITIONER ANNEXURES APPENDIX OF ITA 11/2023 PETITIONER ANNEXURES Annexure ATRUE COPY OF ASSESSMENT ORDER DATED22.11.2018 OF THE ASSESSING OFFICERAnnexure BTRUE COPY OF APPEAL DATED 20.12.2018FILED BY THE APPELLANT BEFOR THECOMMISSIONER OF INCOME TAX (APPEALS),COCHIN Annexure CTRUE COPY OF THE ORDER DATED 11.10.2021OF THE COMMISSIONER OF INCOME TAX(APPEALS), COCHINAnnexure DTRUE COPY OF THE SECOND APPEAL DATED06.12.2021 FILED BY THE APPELLANTBEFORE THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH, COCHIN.Annexure ETRUE COPY OF THE E-MAIL DATED02.12.2022 ALONG WITH PAPER BOOKCONTAINING ANNEXURES SENT BY M/S. VARMA& VARMA, CHARTERED ACCOUNTANTS OF THEAPPELLANT.Annexure FTRUE COPY OF THE ORDER DATED 09.12.2022OF THE APPELLATE TRIBUNAL, COCHINBENCH, COCHIN IN ITA NO. 257/COCH/2021FOR ASSESSMENT YEAR 2016-17 APPENDIX OF ITA 12/2023 PETITIONER ANNEXURES Annexure ATRUE COPY OF ASSESSMENT ORDER DATED27.03.2015 OF THE ASSESSING OFFICERAnnexure BTRUE COPY OF APPEAL DATED 23.04.2015FILED BY THE APPELLANT BEFOR THECOMMISSIONER OF INCOME TAX (APPEALS),COCHIN Annexure CTRUE COPY OF THE ORDER DATED 11.10.2021OF THE COMMISSIONER OF INCOME TAX(APPEALS), COCHINAnnexure DTRUE COPY OF THE SECOND APPEAL DATED06.12.2021 FILED BY THE APPELLANTBEFORE THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH, COCHIN.Annexure ETRUE COPY OF THE E-MAIL DATED02.12.2022 ALONG WITH PAPER BOOKCONTAINING ANNEXURES SENT BY M/S. VARMA& VARMA, CHARTERED ACCOUNTANTS OF THEAPPELLANT.Annexure FTRUE COPY OF THE ORDER DATED 09.12.2022OF THE APPELLATE TRIBUNAL, COCHINBENCH, COCHIN IN ITA NO. 256/COCH/2021FOR ASSESSMENT YEAR 2012-13 APPENDIX OF ITA 13/2023