Ita/1606/2009 Of M/S.skyline Builders, Kochi-35 v. The Commnr. Of Income Tax, Kochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 ITA.No. 1606 of 2009 -------------------- ITA 1162/2005 OF INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH DATED 12-03-2009 ---------- APPELLANT(S)/RESPONDENT:---------------------- M/S.SKYLINE BUILDERS, KOCHI-35. BY ADVS.SRI.P.BALAKRISHNAN (E) SRI.K.C.KIRAN SRI.MOHAN PULIKKAL RESPONDENT(S)/APPELLANT:----------------------- THE COMMISSIONER OF INCOME TAX, KOCHI. BY ADV. SRI.P.K.R. MENON (SR) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ ITA.No. 1606 of 2009 -------------------- APPENDIX PETITIONERS' ANNEXURES ---------------------- ANNEXURE A: COPY OF THE ASST.ORDER DATED 29/3/2005 ISSUED U/S.143(3) ANNEXURE B: COPY OF THE ORDER DATED 25/8/05 OF THE COMMISSIONER OF INCOME TAX (APPEALS)INCOME TAX (APPEALS) ANNEXURE C: COPY OF ORDER DATED 12/3/2009 OF THE INCOME TAX APPELLATETRIBUNALTRIBUNAL ANNEXURE D: COPY OF THE ASST.ORDER DATED 28/12/2007 ISSUED U/S 153A R.W.143(3).R.W.143(3). RESPONDENTS' ANNEXURE --------------------- NIL. / TRUE COPY / PJ P.S. TO JUDGE ANTONY DOMINIC &P.V.ASHA, JJ. ITA.No.1606 of 2009 Dated this the 26[th] day of August, 2016 JUDGMENT Antony Dominic, J. This appeal filed by the assessee is against the order passed by the Income Tax Tribunal, Cochin Bench in ITANo.1162/Coch/2005 pertaining to the assessment year 2002-03.The assessee is a firm engaged in the business of buildingresidential flats and independent bungalows. For the assessmentyear in question they filed their returns with a total income ofRs.58,79,863/- (Rupees Fifty eight lakh seventy nine thousandeight hundred and sixty three only). Subsequently following asurvey a revised return was filed on 12.11.2003 with a totalincome of Rs.46,91,241/-(Rupees Forty six lakh ninety onethousand two hundred and forty one only). Rejecting the booksof accounts the assessment was completed and order was passedon 29.3.2005, on a total income of Rs.1,48,57,690/- (RupeesOne crore forty eight lakhs fifty seven thousand six hundred andninety only). ITA.No.1606 of 2009 :2: 2. The assessee challenged the order before theCommissioner of Income Tax (Appeals). The appellate authorityallowed the appeal. Aggrieved by the order of the first appellateauthority, Revenue filed appeal before the Tribunal on18.11.2005. By the order impugned, passed on 12.3.2009, theTribunal allowed the appeal and restored the assessment order.It is aggrieved by this order the assessee has filed this appeal and the questions of law framed are the following: A. Whether on the facts and in the circumstances the casethe Tribunal is correct in law and fact in adjudicating theappeal filed by the revenue instead of dismissing itbeing infructuous?the Tribunal is correct in law and fact in adjudicating theappeal filed by the revenue instead of dismissing itbeing infructuous? B. Whether on the facts and in the circumstances of thecase the tribunal is correct in law and fact in reversingthe Annexure B order of the Commissioner of Incometax (Appeals)?case the tribunal is correct in law and fact in reversingthe Annexure B order of the Commissioner of Incometax (Appeals)? 3. We heard the learned counsel for the assessee and the learned Senior Counsel appearing for the Revenue. It is theadmitted case of the parties that while when the appeal filed bythe Revenue was pending before the Tribunal, on 24.1.2006 asearch under section 132 of the Income Tax Act was conductedin the premises of the assessee. Thereafter notice under section ITA.No.1606 of 2009 B. Whether on the facts and in the circumstances of thecase the tribunal is correct in law and fact in reversingthe Annexure B order of the Commissioner of Incometax (Appeals)?case the tribunal is correct in law and fact in reversingthe Annexure B order of the Commissioner of Incometax (Appeals)? 3. We heard the learned counsel for the assessee and the learned Senior Counsel appearing for the Revenue. It is theadmitted case of the parties that while when the appeal filed bythe Revenue was pending before the Tribunal, on 24.1.2006 asearch under section 132 of the Income Tax Act was conductedin the premises of the assessee. Thereafter notice under section ITA.No.1606 of 2009 153A was issued on 3.11.2006 and in response thereto theassessee filed its return on 11.12.2006 with a total income ofRs.46,91,241/- (Rupees Forty six lakhs ninety one thousand twohundred and forty one only). Subsequently on 28.12.2007assessment was framed under section 153A read with section143(3) on a total income of Rs.51,86,410/- (Rupees Fifty onelakhs eighty six thousand four hundred and ten only). 4. Though this development took place during the pendencyof the appeal filed by the Revenue before the Tribunal, when theTribunal passed the impugned order on 12.3.2009, thesedevelopments were not brought to the notice of the Tribunal norhas the Tribunal considered the impact of these developments orsection 153A of the Act on the proceedings. According to us fornon-consideration of these developments that took place duringthe pendency of the appeal and also the impact of section 153Aon the proceedings, the order passed by the Tribunal needs to beset aside and the matter has to be remitted to the Tribunal forfresh consideration. Accordingly, setting aside the order passed by the tribunal ITA.No.1606 of 2009 :4: in ITA No.1162/Coch/2005 the appeal is restored to the file ofthe Income Tax Appellate Tribunal, Cochin Bench for freshconsideration with notice to the parties and in accordance withlaw. The appeal is disposed of accordingly. ANTONY DOMINIC, JUDGE. rkc P.V.ASHA, JUDGE.