Rajin Edward Lawrence, Trivandrum v. DCIT,, Trivandrum

ITA 277/COCH/2011 | 2005-2006
Pronouncement Date: 29-11-2011 | Result: Allowed

Appeal Details

RSA Number 27721914 RSA 2011
Bench Cochin
Appeal Number ITA 277/COCH/2011
Duration Of Justice 7 month(s) 10 day(s)
Appellant Rajin Edward Lawrence, Trivandrum
Respondent DCIT,, Trivandrum
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-11-2011
Date Of Final Hearing 29-11-2011
Next Hearing Date 29-11-2011
Assessment Year 2005-2006
Appeal Filed On 18-04-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S.GANESAN (JM) & SHRI SANJAY ARORA (AM) I.T.A.NO S . 275 276 & 277 /COCH/20 11 ASSESSMENT YEARS 2003-04 2004-05 & 2005-06 S MT RAJIN E LAWRENCE TC 11/729 MRA 64 KOWDIAR PO TRIVANDRUM VS. ASSIST.COMMISSIONER OF INCOME-TAX CIR.2 TRIVANDRUM (APP ELLANT ) (RESPONDENT) APPELLANT BY S MT RAJIN EDWARD RESPONDENT BY MS. VIJAYAPRABHA JR DR DATE OF HEARING 29 - 1 1 - 2011 DATE OF PRONOUNCEMENT 29 - 1 1 - 2011 O R D E R PER N.R.S. GANESAN (JM) THESE THREE APPEALS OF THE ASSESSEE ARE DIRECTED A GAINST THE TWO INDEPENDENT ORDERS OF THE COMMISSIONER OF INCOM E-TAX(A)-I TRIVANDRUM FOR THE ASSESSMENT YEARS 2003-04 2004-0 5 AND 2005-06. 2 2. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN A LL THE THREE APPEALS WE HEARD THE SAME TOGETHER AND ARE DISPOSI NG OF THE SAME BY THIS COMMON ORDER. 3. THE ONLY ISSUE ARISES FOR CONSIDERATION IN ALL T HE APPEALS IS WITH REGARD TO INVESTMENT MADE BY THE ASSESSEE IN THE IM MOVABLE PROPERTY. THE ASSESSEE HERSELF HAS APPEARED AND S UBMITTED THAT THE TOTAL INVESTMENT IN THE PROPERTY IS RS.8 LAKHS. TH E ASSESSEE OBTAINED LOAN BY AVAILING A HOUSING LOAN FROM GIC HOUSING FIN ANCE LTD. THIS AMOUNT WAS DISBURSED IN TWO INSTALMENTS. THE FIRST INSTALMENT WAS DISBURSED ON 22-11-2002 AND THE SECOND INSTALMENT O F RS.3 LAKHS WAS DISBURSED ON 05-12-2002. THE ASSESSING OFFICER DIS BELIEVED THE LOAN OBTAINED BY THE ASSESSEE ON THE GROUND THAT THE SEC OND INSTALMENT OF RS.3 LAKHS WAS SHOWN TOWARDS REPAIR AND RENOVATION IN THE LOAN APPLICATION. ACCORDING TO THE ASSESSEE THE ENTIRE LOAN WAS BORROWED FOR THE PURPOSE OF PURCHASING PROPERTY. THEREFORE THERE IS NO QUESTION OF ANY ADDITION IN THE ASSESSMENT ORDERS. THE ASSESSEE FURTHER SUBMITTED THAT SHE HAS PRODUCED ALL THE MAT ERIAL BEFORE THE ASSESSING OFFICER. HOWEVER SHE WAS DRIVEN PILLAR T O POST WITHOUT CONSIDERING THE MATERIALS AVAILABLE ON RECORD. THE REFORE THE ASSESSEE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING O FFICER MAY BE DELETED. 3 4. ON THE CONTRARY MS.VIJAYAPRABHA THE LD.DR SUBM ITTED THAT THE ASSESSEE MADE UNNECESSARY ALLEGATION AGAINST THE AS SESSING OFFICER. THE ASSESSEE HAS NOT RAISED ANY GROUNDS ON MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER. SINCE NO GROUND WAS RAISED AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER THE COMMISS IONER OF INCOME- TAX(A) REJECTED THE APPEAL OF THE ASSESSEE. THEREF ORE ACCORDING TO THE LD.DR NO INTERFERENCE IS CALLED FOR. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL PLACED BEFORE US. THE CO MMISSIONER OF INCOME-TAX(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT RAISED ANY GROUNDS OF APP EAL AGAINST THE ASSESSMENT ORDER AND THE ASSESSEE WAS ALSO CALLING THE ASSESSING OFFICER IN THE WORST FORM IN A DEPLORABLE MANNER. THEREFORE THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT THE ALLEGA TION MADE AGAINST THE ASSESSING OFFICER CANNOT BE INVESTIGATE D BY HIM AND THE APPEAL WAS DISMISSED. THE FACT REMAINS IS THAT THE ASSESSEE APPEARED HERSELF BEFORE THE ASSESSING OFFICER AND THE COMMIS SIONER OF INCOME- TAX(A). THEREFORE THE LOWER AUTHORITIES OUGHT TO HAVE GUIDED THE ASSESSEE THE MANNER IN WHICH THE PROCEEDINGS HAS T O BE PROCEEDED. NOTHING WRONG IN GUIDING AN ASSESSEE BY THE ASSESSI NG OFFICER OR COMMISSIONER OF INCOME-TAX(A) WHEN THE ASSESSEE HER SELF APPEARED AND CONTESTED THE MATTER. WHEN THE APPELLATE COMMI SSIONER FOUND THAT THE ASSESSEE HAS NOT RAISED BY GROUND AGAINST THE ASSESSMENT 4 ORDER HE OUGHT TO HAVE GIVEN AN OPPORTUNITY FOR TH E ASSESSEE TO RAISE GROUND AGAINST THE ADDITION MADE IN THE ASSESSMENT ORDER. HOWEVER THE COMMISSIONER OF INCOME-TAX(A) HAS NOT EXERCISED HIS DISCRETION. SECTION 250(4) GIVES AMPLE POWER TO THE APPELLATE C OMMISSIONER TO MAKE ENQUIRIES. MOREOVER THE POWER OF THE APPELLA TE COMMISSIONER IS CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER. THEREFORE THE COMMISSIONER OF INCOME-TAX(A) SHALL GIVE AN OPPORT UNITY TO THE ASSESSEE TO RAISE GROUNDS ON MERIT AND DISPOSE OF T HE APPEAL IN ACCORDANCE WITH LAW. THE ASSESSEE ADMITTEDLY BORRO WED LOAN OF RS.8 LAKHS FROM GIC HOUSING FINANCE LTD AND THE FIRST INS TALMENT OF RS.5 LAKHS WAS DISBURSED ON 22-11-2002 AND THE SECOND IN STALMENT OF RS.3 LAKHS WAS DISBURSED ON 05-12-2002. MERELY BECAUSE THE ASSESSEE MENTIONED THE PURPOSE OF LOAN IN THE LOAN APPLICATI ON AS FOR REPAIR AND RENOVATION IN RESPECT OF RS.3 LAKHS THE ASSESSING O FFICER DISBELIEVED THE CASE OF THE ASSESSEE. THERE MAY BE VARIOUS REA SONS THAT MIGHT HAVE BEEN DISCLOSED TO THE FINANCE COMPANIES FOR TH E PURPOSE OF OBTAINING THE LOAN. ADMITTEDLY THE FIRST INSTALME NT OF RS.5 LAKHS WAS DISBURSED ON 22-11-2002 THEREFORE THERE CANNOT BE ANY RENOVATION BETWEEN 22-11-2002 AND 05-12-2002 BEING THE DATE OF DISBURSEMENT OF SECOND INSTALMENT. PRIMA FACIE IT APPEARS THAT THE SECOND INSTALMENT OF RS.3 LAKHS IS ALSO UTILIZED FOR THE P URPOSE OF PURCHASING OF THE PROPERTY. EVEN OTHERWISE WHEN THERE WAS NO RENOVATION / REPAIR OF THE BUILDING THAT FUND WAS AVAILABLE WITH THE ASSESSEE FOR INVESTMENT IN PURCHASE OF THE PROPERTY. MERELY BEC AUSE THE ASSESSEE 5 HAS SHOWN THE PURPOSE OF LOAN IN THE APPLICATION TO THE BANK AS FOR REPAIRS AND RENOVATION IT DOES NOT MEAN THAT THAT F UND WAS NOT AVAILABLE WITH THE ASSESSEE FOR MAKING INVESTMENT I N THE PURCHASE OF THE PROPERTY. THESE FACTUAL ASPECTS WERE NOT CONSI DERED BY THE COMMISSIONER OF INCOME-TAX(A) WHILE DISPOSING OF TH E ASSESSEES APPEAL. THE ASSESSEE AN INNOCENT LADY IS PROSECU TING HER APPEAL FROM THE VERY BEGINNING CLAIMING THAT SHE BORROWED RS.8 LAKHS FROM GIC FINANCE LTD FOR THE PURPOSE OF PURCHASING THE P ROPERTY. THIS FACT WAS UNFORTUNATELY NOT APPRECIATED BY THE LOWER AUTH ORITY. THEREFORE IN OUR OPINION THE MATTER NEEDS TO BE RECONSIDERED BY THE COMMISSIONER OF INCOME-TAX(A) ON MERIT. IT IS ALSO OPEN TO THE ASSESSEE TO RAISE GROUNDS ON MERIT BEFORE THE COMMI SSIONER OF INCOME-TAX(A). THE COMMISSIONER OF INCOME-TAX(A) S HALL GO THROUGH THE ADDITION MADE BY THE ASSESSING OFFICER AND THER EAFTER FIND OUT THE GRIEVANCE OF THE ASSESSEE AND THEN DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING PROPER OPPORTUNITY TO THE ASS ESSEE. SINCE THE ASSESSEE IS APPEARING PERSONALLY AND SHE IS NOT CON VERSANT WITH LAW OF INCOME-TAX AND JUDICIAL PROCEEDINGS THE COMMISSION ER OF INCOME- TAX(A) SHALL CONSIDER THE ADDITION MADE BY THE ASSE SSING OFFICER ON MERIT AFTER HEARING THE GRIEVANCES OF THE ASSESSEE. ACCORDINGLY THE ORDERS OF THE COMMISSIONER OF INCOME-TAX(A) IS SET ASIDE AND THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER IS RE MANDED BACK TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A). THE COMM ISSIONER OF INCOME-TAX(A) SHALL RECONSIDER THE ISSUE AFRESH AS INDICATED ABOVE AND 6 THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. SINCE THE MATTER IS PENDING FOR A VERY LONG TIME AND THE ASSESSEE BEING A LADY PROSECUTING THE APPEAL IN PERSON WE DIRECT THE COMMISSIONER OF INC OME-TAX(A) TO DISPOSE OF THE APPEAL WITHIN FOUR MONTHS FROM THE D ATE OF RECEIPT OF COPY OF THIS ORDER. IT IS OPEN TO THE ASSESSEE TO PRODUCE ALL THE NECESSARY MATERIAL BEFORE THE COMMISSIONER OF INCOM E-TAX(A) TO DISPOSE OF THE APPEAL ON MERIT. 6. WITH THE ABOVE OBSERVATIONS ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER 2012 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM DT : 29 TH NOVEMBER 2011 PK/- COPY FORWARDED TO: 1. SHRI RAJIN E LAWRENCE TC 11/729 MRA 64 KAWDIAR P O THIRUVANANTHAPURAM 2. ASSIST.COMMISSIONER OF INCOME-TAX CIR.2 TRIVANDR UM 3. THE COMMISSIONER OF INCOME-TAX(A)-I TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN