Ita/18/2007 Of Shri P.r.narahari Rao v. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH JULY 2007 / 27TH ASHADHA 1929 ITA.No. 18 of 2007 -------------------- ( ITA.445/COCH//2005 of I.T.A.TRIBUNAL,COCHIN BENCH) APPELLANT/APPELLANT IN ITA ------------------------------------------- SHRI P.R.NARAHARI RAO, GEETHA LODGE, M.G.ROAD, ERNAKULAM. BY ADV. SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENT/ RESPONDENT IN ITA ----------------------------------------------------- COMMISSIONER OF INCOME TAX, COCHIN. BY SHRI GEORGE K. GEORGE, SC, INCOMETAX. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2007, ALONG WITH ITA NOS. 25 AND 26 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & K.T. SANKARAN, J. ................................................................................... I.T.A. Nos. 18, 25 AND 26 OF 2007...................................................................................Dated this the 18[th] July, 2007 J U D G M E N T H.L. Dattu, C.J.: Since the issues involved in all these appeals are common, byconsent of the counsel for the parties to the lis, the matter is taken up for finalhearing, though they are posted for admission before this court today. 2. Aggrieved by the orders of re-assessment for theassessment years 1993-94, 1994-95 and 1996-97, passed by the assessingauthority in exercise of his powers under section 147 of the Income Tax Act,the assessee had carried the matter by way of first appeal before theCommissioner of Incometax (Appeals-III). Along with those appeals, theassessee had also filed appeals against the orders of re-assessment for theassessment years 1991-92, 1992-93 and 1995-96. 3. Before the first appellate authority, the assessee's learnedrepresentative, in fact, had not objected to the orders passed by the assessingauthority, in the sense, that, he was really not questioning the correctness orotherwise of the orders of re-assessment passed by the assessing authorityfor the assessment years 1993-94, 1994-95 and 1996-97. The first appellateauthority has noticed the submissions made by the learned representative ofthe assessee and therefore, has not adverted to the contentions canvassed bythe representative of the assessee for those assessment years. In the orderspassed by the first appellate authority, there is a statement by the firstappellate authority that the assessee's representative has not agitated thedis-allowance of interest made by the assessing authority for the aforesaid I.T.A. Nos. 18, 25 AND 26 OF 2007 2 assessment years . In the words of the first appellate authority: “At the time of hearing the authorised representativehas not agitated the disallowance of interest made bythe A.O. at Rs.48,480/- in the assessment years1993-94,1994-95 and 1996-97. It has been prayedthat for assessment years 1991-92, 1992-93 and1995-96, A.O. should have restricted thedisallowance of interest for Rs. 48,480/- instead ofmaking the disallowance by the heavier amounts inthese years.” After making the said statement, the first appellate authority had disposed ofthe appeal in the following manner: “In the result, the appeal for the assessment years1991-92, 1992-93 and 1995-96 are partly allowedand for assessment years 1993-94, 1994-95 and1996-97 are treated as dismissed.” 5. Having not objected to the orders passed by the assessingauthority in respect of the assessment years 1993-94, 1994-95 and 1996-97and having allowed the first appellate authority to pass an order in a particularmanner, the assessee cannot be an aggrieved person and therefore, couldnot have filed any appeals before the Tribunal, though technically an appealmight lie, such an appeal would be clearly unarguable. After making the said statement, the first appellate authority had disposed ofthe appeal in the following manner: “In the result, the appeal for the assessment years1991-92, 1992-93 and 1995-96 are partly allowedand for assessment years 1993-94, 1994-95 and1996-97 are treated as dismissed.” 5. Having not objected to the orders passed by the assessingauthority in respect of the assessment years 1993-94, 1994-95 and 1996-97and having allowed the first appellate authority to pass an order in a particularmanner, the assessee cannot be an aggrieved person and therefore, couldnot have filed any appeals before the Tribunal, though technically an appealmight lie, such an appeal would be clearly unarguable. 6. The Tribunal, after considering the case of the assessee haddisposed of the appeals, by its order dated 9[th] October, 2006. Aggrieved bythe aforesaid order, the assessee is before us in these appeals filed undersection 260A of the Income Tax Act. 3 7. The assessee has raised the following substantial questions of law for our consideration and decision: “i)Whether on the facts and in thecircumstances of the case, was the Income TaxAppellate Tribunal justified in confirming thedisallowance of deduction on interest? ii)In the facts and circumstances of the caseought not the Tribunal have held that the re-openingunder Section 147 is bad in law more so in view ofthe judgment of the Supreme Court?” 8. Shri Anil D. Nair, learned counsel for the assessee would submit on the merits of the appeal. Percontra, Shri George K. George,learned standing counsel for the Revenue would submit that the first andforemost, having conceded before the first appellate authority that he is notagitating the appeals for the assessment years 1993-94, 1994-95 and 1996-97, the assessee could not have filed any appeals before the Income TaxAppellate Tribunal. In our opinion, Shri George K. George, learned standingcounsel for the Revenue is justified in saying so, the reason being that theassessee, having not objected to the orders passed by the assessing authorityon a particular point before the first appellate authority and having allowed thefirst appellate authority to pass an order, could not have filed further appealsbefore the Income Tax Appellate Tribunal. The Tribunal on that sole grounditself, could have rejected the appeals. 9. In that view of the matter, we decline to answer thequestions of law raised for our consideration and decision. Therefore, theappeals require to be rejected and they are rejected. I.T.A. Nos. 18, 25 AND 26 OF 2007 4 10. I.A.No. 1114 of 2007 in I.T.A.No. 25 of 2007 and I.A.No. 1747 of 2007 in I.T.A.No. 26 of 2007 are also disposed of. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE.K.T. SANKARAN, JUDGE. lk/dk