Ita/836/2009 Of The Commissioner Of Income Tax v. Smt.dakshayani Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR &THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933ITA.No. 836 of 2009 ( ) -----------------------ITA.436/2004 of I.T.A.TRIBUNAL,COCHIN BENCHAPPELLANT(S):------------ THE COMMISSIONER OF INCOME TAX, THRISSUR. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAXRESPONDENT(S):--------------SMT. DAKSHAYANI AMMA,FOR M/S. SREE KALEESWARI TALKIES,KODULGALLUR,THRISSUR DISTRICT.(DIED) *ADDL.RESPONDENT IMPLEADED. SUDHA KRISHNAKUMAR, DAUGHTER AND L/HR. OF SMT. DAKSHAYANI AMMA (LATE)RAVIPURAM SANNIDHI, NEAR RAVIPURAM TEMPLE,ERNAKULAM. *ADDL. RESPONDENT IMPLEADED VIDE ORDER ON I.A.1754/11 DATED 3.2.2012. BY SRI.MOHAMMED RAFIQ THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON03-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX // TRUE COPY // P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR & BABU MATHEW P.JOSEPH, JJ. ------------------------------------------------------------ I.T. Appeal No. 836 of 2009 ------------------------------------------------------------- Dated this 3[rd] day of February, 2012 JUDGMENT Ramachandran Nair, J: Heard learned Standing Counsel for the appellant andAdvocate Mr. Rafeeque, appearing for the legal heir of therespondent-assessee, who died during pendency of the appeal. 2. The short question raised in the department appealis whether the Tribunal was justified in holding that CIT (Appeals)went wrong in rectifying the first appellate order under Section154 of the Act. The assessment was made against a partnershipfirm with name of a partner and the tax assessed was on thecapital gains on distribution of assets on closure of a theatre.The assessee challenged the assessment on the ground that itwas made against a partner and not against the firm andtherefore not tenable. The CIT (Appeals) accepted this contention [I.T. Appeal No.836/2009] and allowed the appeal. Strangely, the department did notchallenge the order of CIT (Appeals). However, CIT (Appeals)through sou motu proceedings dated 22.3.2004 revised initialappellate order dated 1.1.2003 under Section 154 of the Act byholding that assessment was in fact on the firm though onlypartner was also named therein. On appeal filed by the assesseeagainst Section 154 order, the Tribunal held that proceedingsunder Section 154 was illegal, unauthorised and withoutjurisdiction. 3. After hearing both sides, we do not find any ground tointerfere with Tribunal's order because the issue decided inproceedings under Section 154 is a debatable one. The status inwhich assessee was assessed was the ground raised in firstappeal which the appellate authority allowed with reasoningstated by him. This findings certainly cannot be reversed byanother set of reasons by the same authority in a proceedingsunder Section 154. We further notice that the tax involved is notvery big and that is why the department has not chosen to file [I.T. Appeal No.836/2009] appeal against first order of CIT(Appeals) for one year.Thereafter, CIT (Appeals) revised its first order against assesseeunder Section 154. We do not find any ground to interfere withthe Tribunal's order I.T. Appeal is, therefore, dismissed. Sd/- C.N. RAMACHANDRAN NAIR, JUDGE. Sd/- krs. BABU MATHEW P. JOSEPH, JUDGE.