Ita/30/2014 Of G. Sunilkumar v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 21ST DAY OF JULY 2015/30TH ASHADHA, 1937 ITA.No. 30 of 2014 () ---------------------- AGAINST THE ORDER IN ITA 257 & 258 of 2013 OF THE INCOME TAXAPPELLATE TRIBUNAL,COCHIN BENCH DATED 05-09-2013 APPELLANT: ------------------- G. SUNILKUMAR SUNEETRON AGENCIES, MC ROAD, THIRUVALLA. BY ADVS.SRI.RAMESH CHERIAN JOHN SRI.JOJO ISAAC NEYYARAPALLY RESPONDENT: ----------------------- THE COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY P.K.R. MENON, SC (SENIOR) FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON21-07-2015, ALONG WITH ITA. 49/2014, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: ITA.No. 30 of 2014 APPELLANT'S ANNEXURES: ANNEXURE A: TRUE COPY OF THE NOTICE DATED 31.08.2010ISSUED UNDER SECTION 142(1) OF the ACT BY THE DEPUTYCOMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE B: TRUE COPY OF THE REPLY DATED 28.10.2010 FILEDBY THE APPELLANT BEFORE THE DEPUTY COMMISSIONER OF INCOMETAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE C: TRUE COPY OF THE NOTICE DATED 16.11.2010ISSUED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRALCIRCLE, KOTTAYAM. ANNEXURE D: TRUE COPY OF THE NOTICE DATED 24.11.2010ISSUED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRALCIRCLE, KOTTAYAM. ANNEXURE E: TRUE COPY OF THE LETTER DATED 29.11.2010FILED BEFORE THE DEPUTY COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE, KOTTAYAM. ANNEXURE F: TRUE COPY OF THE ORDER OF ASSESSMENT DATED31.12.2010 PASSED UNDER SECTION 143(3) R/W. SECTION 153(A) OFTHE INCOME TAX ACT, 1961. ANNEXURE G: TRUE COPY OF THE STATEMENT OF FACTS ANDGROUNDS OF APPEAL FILED BEFORE THE COMMISSIONER OF INCOMETAX (APPEALS) KOCHI, ANNEXURE H: TRUE COPY OF THE NOTICE DATED 22.01.2013ISSUED UNDER SECTION 263 OF THE ACT BY THE COMMISSIONER OFINCOME TAX (CENTRAL) KOCHI. ANNEXURE I: TRUE COPY OF THE REPLY DATED 23.02.2013 FILEDBEFORE THE COMMISSIONER OF INCOME TAX (CENTRAL) KOCHI. ANNEXURE J: TRUE COPY OF THE REPLY DATED 23.02.2013 FILEDBEFORE COMMISSIONER OF INCOME TAX (CENTRAL) KOCHI. ANNEXUFRE K: TRUE COPY OF THE ORDER DATED 30.03.2013PASSED UNDER SECTION 263 OF THE ACT BY THE COMMISSIONER OFINCOME TAX (CENTRAL) KOCHI. ITA.No. 30 of 2014 ANNEXURE L: TRUE COPY OF THE FORM OF APPEAL ANDGROUNDS OF APPEAL DATED 25.04.2013 FILED BEFORE THE INCOMETAX APPELLATE TRIBUNAL, COCHIN BENCH, ERNAKULAM. ANNEXURE M: TRUE COPY OF THE ARGUMENT NOTE FILEDBEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH ANNEXURE N: TRUE COPY OF THE ORDER OF THE INCOME TAXAPPELLATE TRIBUNAL, COCHIN BENCH DATED 05.09.2013. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE smv ANTONY DOMINIC & SHAJI P. CHALY, JJ. ----------------------------------------------- I.T.A. Nos.30 & 49 of 2014 ----------------------------------------------- Dated this the 21[st] day of July, 2015 JUDGMENT Antony Dominic,J. These appeals are filed by the assessee challenging thecommon order passed by the Tribunal dismissing ITA Nos.257and 258 of 2013. The subject matter of these appeals relate tothe assessment years 2009-2010 and 2006-2007 respectively. 2. After scrutiny assessment was completed and noticeswere issued to the assessee under Section 263 of the Income TaxAct, proposing to revise the assessment orders passed againstthe assessee. Objections filed by the assessee was overruled andorders were passed by the Commissioner exercising his powerunder Section 263 of the Act. Assessee filed appeals before theTribunal which were dismissed by the common order dated5.9.2013. It is challenging these orders, the appeals are filed. 3. We heard the learned counsel for the appellant and thelearned Senior Counsel appearing for the revenue. 4. The main contention raised by the counsel for the 2. After scrutiny assessment was completed and noticeswere issued to the assessee under Section 263 of the Income TaxAct, proposing to revise the assessment orders passed againstthe assessee. Objections filed by the assessee was overruled andorders were passed by the Commissioner exercising his powerunder Section 263 of the Act. Assessee filed appeals before theTribunal which were dismissed by the common order dated5.9.2013. It is challenging these orders, the appeals are filed. 3. We heard the learned counsel for the appellant and thelearned Senior Counsel appearing for the revenue. 4. The main contention raised by the counsel for the appellant is that the Tribunal did not examine the matter in themanner it should have. It is also the case of the assessee thatinvocation of the power under Section 263 of the Act itself wasillegal and that even on merits the order passed by theCommissioner was untenable. It is stated that since the Tribunaldid not examine the merits of the contentions ad has notexercised its appellate power in the manner it should have, theorder passed is untenable and require to be set aside. 5. These contentions were refuted by the learned SeniorCounsel appearing for the revenue. 6. We have gone through the common order passed by the Tribunal. Reading of the order shows that the Tribunal hasmade reference to few judgments cited before it and finallyconcluded that the Commissioner has rightly exercised hisjurisdiction under Section 263 of the Act. However, the Tribualhas not dealt with any of the contentions raised by the appellanton the merits of the matter. In other words, in so far as thecontentions of the appellant on the merits of the issue, whichwere urged in the appeal memorandum are concerned, there istotal non-application of mind on the part of the Tribunal. This necessitates re-consideration of the appeal by the Tribunal. 7. In that view of the matter, we set aside the ordersimpugned and the appeal will stand remitted to the Tribunal witha direction to examine and deal with merits of the othercontentions raised by the appellant and to pass orders dealingwith these contentions. Appeals are disposed of accordingly. Sd/-ANTONY DOMINIC JUDGE smv Sd/-JUDGE SHAJI P. CHALY