Ita/24/2012 Of M.s.rathi v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939 ITA.No. 24 of 2012 () ---------------------- AGAINST THE ORDER/JUDGMENT IN ITA 17/COCH/2008 of I.T.A.TRIBUNAL,COCHINBENCH DATED 26.07.2011 APPELLANT/RESPONDENT: ----------------------------- M.S.RATHI PARTNER, M/S.LAKSHMI HOSPITAL, DIWANS ROAD, ERNAKULAM. BY ADV. SRI.ANIL D. NAIR RESPONDENT(S)/APPELLANT: ---------------------------------- THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I, ERNAKULAM. R BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) R BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX R BY SRI.P.PARAMESWARAN NAIR, ASG OF INDIA THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2017, ALONG WITH I.TA. NO.28/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 25-09-2017, ALONG WITH I.TA. NO.28/2012, THE COURT ON THE APPENDIX PETITIONER(S) EXHIBITS: ANNEXURE ATRUE COPY OF THE ORDER OF ASSESSMENT FOR THE YEAR2001-02 ISSUED TO THE APPELLANT. ANNEXURE B TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOMETAX (APPEALS) FOR THE YEAR 2001-02 ISSUED TO THEAPPELLANT. ANNEXURE CTRUE COPY OF THE APPEAL FOR THE YEAR 2001-02 FILED BY THE PETITIONER BEFORE THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH. ANNEXURE D TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH DATED 26/7/2011. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge. rv ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- ------------------------------------------ Dated this the 25[th] day of September, 2017. JUDGMENT Dama Seshadri Naidu,J. I.T.A. No. 24/2012 pertains to the assessment year 2001-2002,and I.T.A No. 28 of 2012 to the assessment year 2002-2003. Bothinvolved a partner of M/s. Lakshmi Hospital, the assessee. 2. Without adverting to the merits of the matter, we may setout the circumstances under which the Tribunal disposed of boththe appeals, as have been submitted to us by the assessee's counsel.These two appeals are said to have been part of a batch listed beforethe Tribunal for disposal in terms of Instruction No. 5 of 2008,dated 15.05.2008. 3. Sri Anil D. Nair, the learned counsel for the appellant, hasfurther elaborated that instruction No.5 of 2008 mandates that ifthe quantum of tax involved in any appeal is less than `1,00,000/-,the adjudicatory authority must dismiss the Revenue's appeal,without entering into the merits. According to him, a batch of appeals were thus disposed of. Since the Revenue itself had these twoappeals listed before the Tribunal, the assessee did not get anopportunity to contest the issues on merits. On the contrary, it wasbelieved that they would be dismissed, because the disputed tax is less than `1,00,000/-. At any rate, he further contends that, perhaps,guided by the paper book submitted by the parties to the litigation,the Tribunal decided these two cases on merits oblivious of the factthat the assessee never had an opportunity of arguing the case onmerits. 4. As seen from I.T.A No. 28 of 2012, there is a specific groundto this effect, and it has not been contradicted by the Revenue by anyaffidavit. Though I.T.A. No. 24 of 2012 does not contain any explicitground to the same effect, we gather that both these appeals havebeen disposed of under identical circumstances by a common order.Further, ground 'C' refers to the circumstances under which theTribunal disposed of the appeal. 5. The learned Senior Counsel for the Revenue, nevertheless,opposed the appellant's contention. But we are satisfied that the I.T.A. Nos.24 & 28 of 2012 impugned orders are without an opportunity to the assessee: nohearing take place. 4. As seen from I.T.A No. 28 of 2012, there is a specific groundto this effect, and it has not been contradicted by the Revenue by anyaffidavit. Though I.T.A. No. 24 of 2012 does not contain any explicitground to the same effect, we gather that both these appeals havebeen disposed of under identical circumstances by a common order.Further, ground 'C' refers to the circumstances under which theTribunal disposed of the appeal. 5. The learned Senior Counsel for the Revenue, nevertheless,opposed the appellant's contention. But we are satisfied that the I.T.A. Nos.24 & 28 of 2012 impugned orders are without an opportunity to the assessee: nohearing take place. We, therefore, set aside the impugned orders, restore the I.T.(SS)A Nos. 17 & 18/Coch/2008 to the file of the Tribunal and furtherdirect the Tribunal to dispose of the matters on merits, after giving anopportunity to both the parties. Accordingly, these appeals are disposed of. ANTONY DOMINIC, JUDGE. DAMA SESHADRI NAIDU, JUDGE. Rv