Sri M.C.Jose, Adimaly v. ITO, Thodupuzha

ITA 112/COCH/2010 | 2003-2004
Pronouncement Date: 29-03-2012 | Result: Allowed

Appeal Details

RSA Number 11221914 RSA 2010
Assessee PAN AQWPM6168M
Bench Cochin
Appeal Number ITA 112/COCH/2010
Duration Of Justice 2 year(s) 1 month(s) 10 day(s)
Appellant Sri M.C.Jose, Adimaly
Respondent ITO, Thodupuzha
Appeal Type Income Tax Appeal
Pronouncement Date 29-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-03-2012
Date Of Final Hearing 26-03-2012
Next Hearing Date 26-03-2012
Assessment Year 2003-2004
Appeal Filed On 18-02-2010
Judgment Text
1 ITA NO 112/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 112/COCH/2010 (ASSESSMENT YEAR 2003-04) M.A. JOSE ADVOCATE VS ITO WD.2 NOOLAYIL MACHIPLAVU P.O. THODUPUZHA PAN : AQWPM6168M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.I. JOHN RESPONDENT BY : SHRI T.J. VINCENT DATE OF HEARING : 26-03-2012 DATE OF PRONOUNCEMENT : 29-03-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-II KOCHI DATED 30-11-2009 AND PERTAI NS TO ASSESSMENT YEAR 2003-04. 2. SHRI K.I. JOHN THE LD.REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSMENT ORDER SERVED ON THE ASSESSEE WAS NOT SIG NED BY THE ASSESSING OFFICER. THEREFORE ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSMENT ORDER IS NOT VALID. REFERRING TO THE MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER THE LD.REPRESENTATIVE SUBMITTED THAT THE ONLY ISSUE IS WITH REGARD TO THE SOURCE OF INVESTMENT OF RS.5 LAKHS. ACCORDING TO THE LD.REPR ESENTATIVE SALE PROCEEDS OF 2 ITA NO 112/COCH/2010 AGRICULTURAL PRODUCE OF PAST YEARS WERE UTILIZED FO R GIVING LOAN TO SHRI BABY MATHEW. THE LOWER AUTHORITIES DISALLOWED THE CLAIM OF THE ASSESSEE IN THE ABSENCE OF ANY MATERIAL. THE ASSESSEE HAS FILED THE CASH FLOW STATEMENT TO SHOW THAT THE FUNDS ARE AVAILABLE FOR THE PURPOSE OF GIV ING LOAN TO THE EXTENT OF RS.5 LAKH. ON A QUERY FROM THE BENCH THE LD.REPRESENTAT IVE VERY FAIRLY SUBMITTED THAT THIS CASH FLOW STATEMENT FILED BEFORE THE TRIBUNAL WAS NOT AVAILABLE BEFORE THE LOWER AUTHORITIES THEREFORE HE HAS NO OBJECTION T O REMIT BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINATION. 3. WE HEARD THE LD.DR ALSO. THE LD.DR HAS NO OBJEC TION TO REMIT BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO VERI FY THE CASH FLOW STATEMENT FILED BY THE ASSESSEE TO SEE THE AVAILABILITY OF FUNDS FO R GIVING LOAN TO SHRI BABY MATHEW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. SINCE THE ASSESS EE CONTENDED THAT THE ASSESSMENT ORDER WAS NOT SIGNED BY THE ASSESSING OF FICER THIS TRIBUNAL HAS IN FACT CALLED FOR THE RECORDS FROM THE ASSESSING OFFICER. ON EXAMINATION WE FOUND THAT THE ORIGINAL ORDER WAS SIGNED BY THE ASSESSING OFFI CER. HOWEVER COPY OF THE ORDER SERVED ON THE ASSESSEE WAS NOT SIGNED BY THE ASSESSING OFFICER. THIS TRIBUNAL IS OF THE OPINION THAT THE ORIGINAL ORDER IS AVAILABLE ON THE FILE OF THE ASSESSING OFFICER AND WHAT HAS BEEN SERVED ON THE A SSESSEE IS ONLY A COPY. THEREFORE MERELY BECAUSE THERE IS NO SIGNATURE IN THE COPY SERVED ON THE ASSESSEE IT WILL NOT INVALIDATE THE ASSESSMENT ORD ER. THEREFORE WE FIND NO MERIT IN THE CONTENTION OF THE LD.REPRESENTATIVE FOR THE ASSESSEE THAT THE ASSESSMENT ORDER IS INVALID. 3 ITA NO 112/COCH/2010 5. NOW COMING TO THE MERIT OF THE ADDITION ADMITTE DLY THE ASSESSEE HAS NOT FILED ANY MATERIAL TO SHOW THE AVAILABILITY OF FUND S FOR THE PURPOSE OF GIVING LOAN TO SHRI BABY MATHEW. NOW THE ASSESSEE HAS FILED A CASH FLOW STATEMENT TO SHOW THE AVAILABILITY OF FUNDS. BOTH THE LD.REPRESENTAT IVE AND THE LD.DR HAS NO OBJECTION IN REMITTING BACK THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF THE CASH FLOW STATEMENT NOW FILED. ACCORDINGLY THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF AD DITION OF RS.5 LAKHS IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSE SSING OFFICER SHALL RE-EXAMINE THE ISSUE IN THE LIGHT OF THE CASH FLOW STATEMENT FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVI NG REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THIS 29 TH DAY OF MARCH 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 29 TH MARCH 2012 PK/- COPY TO: 1. M.C. JOSE ADVOCATE NOOLAYIL MACHIPLAVU P.O 2. ITO WD.1(3) KOWDIAR TRIVANDRUM 3. THE C.I.T.(A)-I TRIVANDRUM 4. C.I.T. TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH