Ita/92/2011 Of The Commissioner Of Income Tax(Central) v. M/S P.h.mohammed Kunju And Brothers,Koch

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939 ITA.No. 92 of 2011 ( ) ----------------------- AGAINST THE ORDER/JUDGMENT IN ITA 389/COCH/2009 of I.T.A.TRIBUNAL,COCHINBENCH DATED 15-03-2011 APPELLANT(S): ----------------- THE COMMISSIONER OF INCOME TAX (CENTRAL), COCHIN. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): -------------------- M/S P.H.MOHAMMED KUNJU AND BROTHERS, MARKET ROAD, KOCHI - 682 031. R,1 BY ADV. SRI.JOSEPH MARKOSE (SR.) R1 BY ADV. SRI.MOHAMMED RAFIQ THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: : 2 : APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A:TRUE COPY OF ASSESSMENT ORDER DATED 31.12.2017. ANNEXURE B :TRUE COPY OF ORDER OF CIT(A)-111 DATED 09.04.2009 ANNEXURE C :TRUE COPY OF ITAT'S ORDER DATED 15.03.2011. ANNEXURE D:TRUE COPY OF ITAT'S ORDER IN THE CASE OF SELLERSAFFIRMING THE ASSESSMENT ORDER DATED 20.02.2009 &30.04.2010.AFFIRMING THE ASSESSMENT ORDER DATED 20.02.2009 &30.04.2010. RESPONDENTS' ANNEXURES:NIL //TRUE COPY// P.A. TO JUDGE. rv ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ---------------------------------------------- I.T. Appeal No. 92 of 2011 --------------------------------------------- Dated this the 10[th] day of October, 2017. JUDGMENT Antony Dominic, J. This appeal filed by the Revenue is against the order passedby the Income Tax Appellate Tribunal, Cochin Bench in I.T.A. No.389/Coch/2009 concerning the assessment year 2005-2006. By thesaid order, the Tribunal held that the assessment officer was notjustified in making addition of `54,74,200/- under Section 69C of theIncome Tax Act. On that basis, the orders of the assessing officer andthe first appellate authority were set aside. It is aggrieved by thisorder, the Revenue has filed this appeal framing the followingquestions of law for the consideration of this Court: 1. Whether, on the facts and in the circumstances of the casethe Tribunal is right in law in deleting the addition made onaccount of unexplained investment in property on the groundthat the assessment was based on a computer printout whichwas not seized from the assessee's premises and it was notsigned by the assessee?the Tribunal is right in law in deleting the addition made onaccount of unexplained investment in property on the groundthat the assessment was based on a computer printout whichwas not seized from the assessee's premises and it was notsigned by the assessee? 2. Whether, on the facts and in the circumstances of the casethe Tribunal is right in law in deleting the addition on accountof unexplained investment in property in the hands of thepurchaser when the assessment in the case of the sellersadopting the same value was confirmed by the ITAT by ordermarked Annexure D?the Tribunal is right in law in deleting the addition on accountof unexplained investment in property in the hands of thepurchaser when the assessment in the case of the sellersadopting the same value was confirmed by the ITAT by ordermarked Annexure D? 3. 4. Whether, on the facts and in the circumstances of the casethe Tribunal is right in law holding that evidence should bethe Tribunal is right in law holding that evidence should be obtained from the premises of the assessee and should besigned by the assesee for its application in assessment whenthe veracity of the document had been proved already? 5. Whether on the facts and in the circumstances of the case andin the light of the ground raised, the ITAT is right in law andfact in interfering with the assessment?in the light of the ground raised, the ITAT is right in law andfact in interfering with the assessment? 3. 4. Whether, on the facts and in the circumstances of the casethe Tribunal is right in law holding that evidence should bethe Tribunal is right in law holding that evidence should be obtained from the premises of the assessee and should besigned by the assesee for its application in assessment whenthe veracity of the document had been proved already? 5. Whether on the facts and in the circumstances of the case andin the light of the ground raised, the ITAT is right in law andfact in interfering with the assessment?in the light of the ground raised, the ITAT is right in law andfact in interfering with the assessment? 2. We heard the learned Senior Counsel for the Revenue and the learned Senior Counsel for the assessee. 3. From the order impugned, we find that there was a searchunder Section 132 of the Act in the premises of the assessee on05.10.2005. In the previous year to the assessment year, the assesseehad purchased 60.412 cents of land from 3 persons and in the accounts,the value of the property was shown as `1,57,36,700/-. However, from the residences of the two sellers, a paper giving details of theconsideration given was found and it is revealed that the actualconsideration paid was `2,03,20,100/-. When confronted, two sellersconfirmed the excess payment, while one denied the allegations. Thisled to an assessment and an addition under Section 69C of the Act andthe same was confirmed by the first appellate authority. It is this orderwhich was challenged by the assessee in the Tribunal. 4. A reading of the order passed by the Tribunal shows that the Tribunal had followed the orders passed by it in the case of one ofthe sellers and it is primarily following that order the appeal was allowed. We find that the aforesaid order followed by the Tribunal was inI.T.A.Nos. 822 and 823 of 2008 and that these orders were the subjectmatter of I.T.A Nos. 360 and 392 of 2010 before this Court and that byjudgment dated 18.07.2011, this Court set aside the orders and remittedthe matter to the Commissioner (Appeals). Civil Appeals filed by theassessee against the judgment of this Court were also disposed ofconfirming the judgment and directing consideration of the additionalissues. 5. Evidently therefore, the order on which the Tribunal placedreliance has been set aside by this Court, and for that reason itself theorder impugned in this appeal also deserves to be set aside. Therefore,without answering the questions of law, the impugned order is set asideand the matter is remitted to the CIT (Appeals) for re-consideration ofthe matter with notice to the assessee. This appeal is disposed of accordingly. ANTONY DOMINIC, JUDGE. DAMA SESHADRI NAIDU, JUDGE.