Sri.Santhosh George, Kottayam v. DCIT, Kottayam

ITA 296/COCH/2012 | 2007-2008
Pronouncement Date: 31-07-2013 | Result: Allowed

Appeal Details

RSA Number 29621914 RSA 2012
Assessee PAN ADJPG0660J
Bench Cochin
Appeal Number ITA 296/COCH/2012
Duration Of Justice 8 month(s) 18 day(s)
Appellant Sri.Santhosh George, Kottayam
Respondent DCIT, Kottayam
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-07-2013
Date Of Final Hearing 22-07-2013
Next Hearing Date 22-07-2013
Assessment Year 2007-2008
Appeal Filed On 12-11-2012
Judgment Text
1 ITA NO. 291 TO 297/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. ITAS 291 TO 297/COCH/2012 (ASSESSMENT YEARS 2003-04 TO 2009-10) SHRI SANTHOSH GEORGE VS DY.CIT CENT.CIR. KULANGARA HOUSE KOTTAYAM MARANGATTUPILLY KOTTAYAM 686 635 PAN : ADJPG0660J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MATHEW JOSEPH RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 22-07-2013 DATE OF PRONOUNCEMENT : 31-07-2013 O R D E R PER N.R.S. GANESAN (JM) ALL THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAIN ST THE COMMON ORDER PASSED BY THE CIT(A)-III KOCHI DATED 05-09-2 012 AND PERTAINS TO ASSESSMENT YEARS 2003-04 TO 2009-10. THEREFORE WE HEARD ALL THE APPEALS TOGETHER AND DISPOSE OF THE SAME BY THIS CO MMON ORDER. 2 ITA NO. 291 TO 297/COCH/2012 2. LET US FIRST TAKE APPEAL FOR ASSESSMENT YEAR 200 3-04. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDITION OF RS. 9 9 752 AS UNEXPLAINED INVESTMENT. 3. SHRI MATHEW JOSEPH THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSEE DEPOSITED A SUM OF RS.9 9 752 IN THE PERSONAL ACCOUNT MAINTAINED WITH STATE BANK OF TRAVANCORE (S BT HEREINAFTER) MARANGATTUPALLY. ACCORDING TO THE LD.REPRESENTATIV E THE TRANSACTIONS IN THE PERSONAL ACCOUNT WAS INADVERTENTLY OMITTED TO BE EN TERED IN THE BOOKS OF ACCOUNT. THE ASSESSEE HAS ALSO FILED DETAILS OF TH E PERSONAL TRANSACTIONS AND SUBMITTED THAT THE CASH BALANCE AS ON 31-03-201 3 IS RS.9 49 500. SINCE SUFFICIENT CASH BALANCE IS AVAILABLE ACCORDI NG TO THE LD.REPRESENTATIVE THERE IS NO JUSTIFICATION FOR MA KING ADDITION OF RS.99 752. 4. ON THE CONTRARY SMT.S VIJAYAPRABHA THE LD.DR S UBMITTED THAT THE DETAILS OF PERSONAL TRANSACTIONS AND THE CASH FLOW STATEMENT WERE NOT FILED BEFORE THE ASSESSING OFFICER. SINCE IT WAS FILED B EFORE THE TRIBUNAL AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSING OFFICER T O EXAMINE THE FUNDS. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMED THAT CAS H BALANCE OF RS.9 49 500 WAS ALSO AVAILABLE AS ON 31-03-2003; TH EREFORE SUFFICIENT 3 ITA NO. 291 TO 297/COCH/2012 CASH BALANCE IS AVAILABLE WITH THE ASSESSEE FOR MAK ING A DEPOSIT OF RS.99 052 IN THE PERSONAL ACCOUNT OF THE ASSESSEE M AINTAINED WITH SBT. AS RIGHTLY SUBMITTED BY THE LD.DR THE ASSESSING OF FICER HAS NOT EXAMINED THE AVAILABILITY OF THE CASH BALANCE AS ON 31-03-20 03. THE LOWER AUTHORITIES FOUND THAT THE SO-CALLED DEPOSIT WAS NO T INCLUDED IN THE NET WEALTH STATEMENT FILED BY THE ASSESSEE BEFORE THE A SSESSING OFFICER. NOW THE LD.REPRESENTATIVE CONTENDS THAT BY INADVERTENT OMISSION IT WAS NOT INCLUDED IN THE NET WEALTH STATEMENT FILED BEFORE T HE ASSESSING OFFICER. SINCE THE ASSESSEE HAS FILED DETAILS OF TRANSACTION S AND CLAIMS THAT SUFFICIENT FUNDS ARE AVAILABLE THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DETAILS FILED BY THE ASSESSEE NEEDS TO BE EXAMI NED BY THE ASSESSING OFFICER. ACCORDINGLY THE ORDERS OF THE LOWER AUTH ORITIES FOR THE ASSESSMENT YEAR 2003-04 IN RESPECT OF ADDITION OF RS. 99 752 A RE SET ASIDE AND THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSIN G OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE DETAILS OF PERSONAL TRANS ACTIONS ENTERED INTO DURING THE RELEVANT ASSESSMENT YEAR AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 6. NOW COMING TO THE APPEALS FOR ASSESSMENT YEARS 2 004-05 AND 2005-06 THE FIRST GROUND OF APPEAL IN BOTH THE APP EALS PERTAINS TO ADDITION 4 ITA NO. 291 TO 297/COCH/2012 OF RS. 1 LAKH FOR THE ASSESSMENT YEAR 2004-05 AND R S. 2 48 179 FOR THE ASSESSMENT YEAR 2005-06 ON ACCOUNT OF DEPOSITS IN S BT MARANGATTUPALLY. 7. WE HEARD THE LD.REPRESENTATIVE FOR THE ASSESSEE AND THE LD.DR. THE ASSESSEE HAS FILED THE DETAILS OF PERSONAL TRANSACT IONS FOR THE YEARS UNDER CONSIDERATION ALSO. BOTH THE LD.REPRESENTATIVE FOR THE ASSESSEE AND THE LD.DR ADVANCED SIMILAR ARGUMENTS AS THAT OF THE ARG UMENTS FOR THE ASSESSMENT YEAR 2003-04 CONSIDERED ABOVE. SINCE FA CTS ARE IDENTICAL THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY THE ORDERS OF THE LOWER AUTHORITIES FOR THE ASSESSMENT YEARS 2003-04 & 2004 -05 IN RESPECT OF ADDITION OF RS.1 LAKH FOR THE ASSESSMENT YEAR 2003- 04 AND RS. 2 48 179 FOR THE ASSESSMENT YEAR 2005-06 ON ACCOUNT OF DEPOS ITS IN SBT MARANGATTUPALLY ACCOUNT ARE SET ASIDE AND THE MATTE R IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING O FFICER SHALL EXAMINE THE DETAILS OF PERSONAL TRANSACTIONS ENTERED INTO DURIN G THE RELEVANT ASSESSMENT YEARS AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO T HE ASSESSEE. 8. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADDI TION OF RS.92 000 AND RS. 1 75 000 FOR THE ASSESSMENT YEARS 2003-04 A ND 2004-05 RESPECTIVELY AS INCOME FROM OTHER SOURCES. 5 ITA NO. 291 TO 297/COCH/2012 9. SHRI MATHEW JOSPEH THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SOLD TREES WHICH WE RE GROWN SPONTANEOUSLY FOR WHICH THERE IS NO COST OF ACQUISI TION. THEREFORE THE ENTIRE AMOUNT HAS TO BE TREATED AS NOT TAXABLE. FO R THIS PROPOSITION THE LD.REPRESENTATIVE HAS PLACED RELIANCE ON THE JUDGME NT OF THE CALCUTTA HIGH COURT IN CIT VS SUMAN TEA & PLYWOOD INDUSTRIES (P) LTD (1997) 226 ITR 34 (CAL); SUPREME COURT JUDGMENT IN THE CASE OF CIT VS B.C. SRINIVASA SETTY (1981) 128 ITR 294 (SC) AND THE JUDGMENT OF T HE KERALA HIGH COURT IN THE CASE OF CIT VS E.C. JACOB (1973) 89 ITR 88 ( KER) AFFIRMED IN 128 ITR 294 (SC). 10. ON THE CONTRARY SMT. S. VIJAYAPRABHA THE LD.D R SUBMITTED THAT ADMITTEDLY THE TREES WERE GROWN SPONTANEOUSLY. TH E JUDGMENTS REFERRED TO BY THE LD.REPRESENTATIVE FOR THE ASSESSEE ARE IN RESPECT OF BUSINESS CONCERNS AND NOT IN RESPECT OF TREES GROWN SPONTANE OUSLY. REFERRING TO THE JUDGMENT OF THE APEX COURT IN THE CASE OF MAHAR AJADHIRAJ SIR KAMESHWAR SINGH VS CIT (1957) 32 ITR 587 (SC) THE LD.DR SUBMITTED THAT WHEN THE TREES ARE SOLD WHICH ARE GROWN SPONT ANEOUSLY THE RECEIPT OF THE SAME HAS TO BE TAXED AS CASUAL AND NON RECUR RING INCOME OF THE ASSESSEE. 6 ITA NO. 291 TO 297/COCH/2012 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NO T IN DISPUTE THAT THE TREES WERE GROWN SPONTANEOUSLY IN THE PROPERTY PURCHASED IN THE YEAR 2001. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE SALE CONSIDERATION RECEIVED ON SALE OF THE TREES WHICH WERE GROWN SPON TANEOUSLY WITHOUT ANY HUMAN AID COULD BE TREATED AS A CASUAL RECEIPT OR C APITAL RECEIPT? WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE APE X COURT IN THE CASE OF MAHARAJADHIRAJ SIR KAMESHWAR SINGH (SUPRA) BEFORE T HE APEX COURT. IN THAT CASE VARIOUS TREES GROWN SPONTANEOUSLY WITHOUT ANY HUMAN AID AND LABOUR WERE SOLD. THE APEX COURT AFTER REFERRING TO THE JUDGMENT OF THE PRIVY COUNCIL IN RAJA MUSTAFA ALI KHAN VS CIT (1948 ) 16 ITR 330 FOUND THAT THE RECEIPT ON SALE OF SUCH TREES CANNOT BE TR EATED AS AGRICULTURAL INCOME. THE QUESTION WHETHER THE TREES GROWN SPON TANEOUSLY HAS NO COST OF ACQUISITION WAS NOT RAISED BY THE ASSESSEE BEFORE THE SUPREME COURT AND THE SUPREME COURT HAD NO OCCASION TO CONS IDER SUCH A PLEA. THEREFORE THE CONTENTION OF THE LD.DR THAT THE REC EIPT HAS TO BE TREATED AS CASUAL AND NON RECURRING ON THE BASIS OF THE JUDGME NT OF THE APEX COURT MAY NOT BE CORRECT. 12. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMEN T OF THE CALCUTTA HIGH COURT IN THE CASE OF SUMAN TEA & PLYWOOD INDUS TRIES (P) LTD (SUPRA). 7 ITA NO. 291 TO 297/COCH/2012 IN THE CASE BEFORE THE CALCUTTA HIGH COURT THE ASS ESSEE CLAIMED SALE OF TREES GROWN SPONTANEOUSLY AS NOT TAXABLE. THE CALC UTTA HIGH COURT AFTER REFERRING TO THE JUDGMENT OF THE FULL BENCH OF THE KERALA HIGH COURT IN CIT VS JACOB (E.C.) (1973) 89 ITR 88 (KER)(FB) AND THE JUDGMENTS OF THE APEX COURT IN THE CASE OF CIT VS B.C. SRINIVASA SETTY (1 981) 128 ITR 294 (SC); VISHNUDATTA ANTHARJANAM VS COMMR. OF AGRIL.I.T. (19 70) 78 ITR 58 (SC) AND IN CIT VS AMBAT ECHUKUTTY MENON (1979) 120 ITR 70 (SC) FOUND THAT THE RECEIPT ON SALE OF TREES GROWN SPONTANEOUSLY HA S TO BE TREATED AS CAPITAL IN NATURE AND SINCE THERE IS NO COST OF ACQ UISITION IT CANNOT BE ASSESSED AS TAXABLE INCOME. THIS JUDGMENT OF THE C ALCUTTA HIGH COURT IS DIRECTLY ON THE POINT REGARDING THE TAXABILITY OF T HE TREES GROWN SPONTANEOUSLY WITHOUT ANY HUMAN AID. SINCE THE APE X COURT IN THE CASE OF MAHARAJADHIRAJ SIR KAMESHWAR SINGH (SUPRA) IS SI LENT WITH REGARD TO COST OF ACQUISITION AND IT ONLY DEALS WITH THE ISSUE WHE THER IT IS AGRICULTURAL INCOME OR NOT THIS TRIBUNAL IS OF THE OPINION THAT THE CALCUTTA HIGH COURT JUDGMENT IN THE CASE OF SUMAN TEA & PLYWOOD INDUSTR IES (P) LTD (SUPRA) MAY BE SQUARELY APPLICABLE TO THE FACTS OF THE CASE . THEREFORE THE SALE OF TREES GROWN SPONTANEOUSLY HAS TO BE TREATED AS CAPI TAL IN NATURE AND SINCE THERE IS NO COST OF ACQUISITION IT IS NOT LIABLE F OR TAXATION AS FOUND BY THE CALCUTTA HIGH COURT. ACCORDINGLY THE ASSESSEE SUC CEEDS ON THIS GROUND. 8 ITA NO. 291 TO 297/COCH/2012 13. NOW COMING TO THE APPEAL FOR ASSESSMENT YEAR 20 06-07 THE FIRST ISSUE IS WITH REGARD TO ADDITION OF RS.1 03 396 AS OTHER INCOME. THIS GROUND IS AKIN TO THE GROUND RAISED FOR ASSESSMENT YEARS 2003-04 TO 2005- 06. WHILE DEALING WITH THE ISSUE FOR ASSESSMENT YE ARS 2003-04 TO 2005- 06 WE HAVE ALREADY REMITTED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. SINCE THE ISSUE IS IDENTICAL AND THE FACT S AND CIRCUMSTANCES ARE ALSO SAME WE DIRECT THE ASSESSING OFFICER TO RECON SIDER THE ISSUE ON THE LINES OF DIRECTIONS ALREADY ISSUED FOR ASSESSMENT Y EARS 2003-04 TO 2005- 06. 14. THE NEXT GROUND OF APPEAL IS WITH REGARD TO EST IMATION OF AGRICULTURAL INCOME. THE ASSESSEE CLAIMED AGRICULTURAL INCOME O F RS. 11 59 247. HOWEVER THE ASSESSING OFFICER DISALLOWED RS.8 35 0 92 BASED ON THE DATA SAID TO BE COLLECTED FROM THE AGRICULTURAL OFFICER AT IDUKKI. ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSEE HAS ONLY 3.5 ACRES OF LAND AT IDUKKI THE REST OF THE LAND ARE AT VAIKOM MARANGATTUPALLI AND COIMBATORE. THEREFORE THE DATA COLLECTED FROM AGRICULTURAL OFF ICER IDUKKI MAY NOT BE SUPPORTING THE ESTIMATION OF AGRICULTURAL INCOME IN RESPECT OF OTHER PLACES. ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSEE MA INTAINS BOOKS OF ACCOUNT AND THEREFORE THERE IS NO NEED FOR ESTIMAT ION OF AGRICULTURAL INCOME. THE LD.REPRESENTATIVE FURTHER SUBMITTED TH AT IDUKKI IS A HILL STATION 9 ITA NO. 291 TO 297/COCH/2012 WHERE CULTIVATION OF SPICES IS COMMON AND BANANA CU LTIVATION IS NOT COMMON IN IDUKKI. ON A QUERY FROM THE BENCH WHAT I S THE NATURE OF CROP CULTIVATED THE LD.REPRESENTATIVE SUBMITTED THAT TH E ASSESSEE IS CULTIVATING COCONUT AND BANANA. IN RESPECT OF INCOME DECLARED AGAINST CULTIVATION OF COCONUT THE ASSESSING OFFICER HAS ACCEPTED THE ENT IRE INCOME; HOWEVER DISALLOWANCE WAS ATTRIBUTED TO BANANA CULTIVATION. 15. ON THE CONTRARY SMT. S VIJAYAPRABHA THE LD.DR SUBMITTED THAT THE ASSESSEE HAS SHOWN RS.9 95 300 AS INCOME FROM CULTI VATION OF BANANA AND PLANTAIN IN 10.16 ACRES OF AND. AS PER THE DAT A COLLECTED FROM THE AGRICULTURAL OFFICER AT IDUKKI THE NET INCOME FROM BANANA CULTIVATION IN ONE HECTARE OF LAND IS ONLY RS.40 052. ON THIS BASIS ACCORDING TO THE LD.REPRESENTATIVE THE INCOME RECEIVABLE FROM 10.16 ACRES OF BANANA CULTIVATION WAS ESTIMATED AT RS.1 60 208. THE BALA NCE AMOUNT OF RS.8 35 092 WAS DISALLOWED. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AREA OF THE LAND AND THE NATURE OF THE CULTIVATION IS NOT IN DISPUTE. WHAT IS DISPUTED IS ESTIMATION OF INCOME. THE ASSESSING OFFICER PLACING RELIANCE ON THE DATA COLLECTED FROM 10 ITA NO. 291 TO 297/COCH/2012 THE AGRICULTURAL OFFICER AT IDUKKI ESTIMATED THE IN COME AT RS. 1 60 208 FOR 10.86 ACRES OF LAND HELD BY THE ASSESSEE. THE COPI ES OF THE DATA SAID TO BE COLLECTED FROM THE AGRICULTURAL OFFICER IS NOT A VAILABLE ON RECORD. DETAILS REGARDING VARIETIES OF BANANA CULTIVATED ARE ALSO N OT ON RECORD. IN THE ABSENCE OF THE DETAILS OF VARIETIES OF BANANA CULTI VATION ON THE LAND IT IS NOT KNOWN HOW THE AGRICULTURAL OFFICER WAS ABLE TO PROVIDE THE DATA. THE PRICE OF EACH VARIETY OF BANANA WOULD DEPEND UPON T HE PREVAILING MARKET RATE DURING THE RELEVANT ASSESSMENT YEAR. MOREOVER WHEN THE ASSESSEE CLAIMS THAT HE IS MAINTAINING THE BOOKS OF ACCOUNT FOR CULTIVATION WITHOUT FINDING FAULT WITH THE BOOKS OF ACCOUNT MAINTAINED FOR CULTIVATION ESTIMATION OF AGRICULTURAL INCOME MAY NOT BE JUSTIFIED. THERE FORE IF AT ALL THERE WAS ANY DEFECT IN THE BOOKS OF ACCOUNT IT IS FOR THE A SSESSING OFFICER TO REJECT THE SAME AFTER EXAMINATION AND THEREAFTER RESORT TO ESTIMATION IF REQUIRED. BUT WITHOUT EXAMINING THE BOOKS OF ACCOUNT THIS TR IBUNAL IS OF THE CONSIDERED OPINION THAT ON THE BASIS OF THE DATA CO LLECTED FROM THE AGRICULTURAL OFFICER THE PROFIT CANNOT BE ESTIMATE D. ACCORDINGLY THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RE- CONSIDERED. HENCE THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER THE BOOKS OF ACCOUNT SAID TO BE MAINTAINED BY THE ASSESSEE FOR AGRICULTURAL INCOME AND THEREAFTER DEC IDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY TO THE ASSESSEE. 11 ITA NO. 291 TO 297/COCH/2012 WE MAKE IT CLEAR THAT IT IS OPEN TO THE ASSESSING O FFICER TO REJECT THE BOOKS OF ACCOUNT IN CASE THE BOOKS OF ACCOUNT ARE NOT PRO PERLY MAINTAINED OR ANY OTHER DEFECT WAS POINTED OUT BY THE ASSESSING OFFIC ER DURING THE COURSE OF EXAMINATION. 17. COMING TO THE APPEAL FOR THE ASSESSMENT YEAR 20 07-08 THE ONLY ISSUE RAISED IN THE APPEAL PERTAINS TO ESTIMATION O F AGRICULTURAL INCOME. THE ISSUE IS IDENTICAL TO GROUND NO.2 RAISED FOR TH E ASSESSMENT YEAR 2006- 07 WHERE WE HAVE RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION AFTER VERIFYING THE BOOKS OF ACCOUN T MAINTAINED BY THE ASSESSING OFFICER. THE FACTS AND CIRCUMSTANCES ARE ADMITTEDLY ONE AND SAME. THEREFORE FOLLOWING THE ORDER FOR ASSESSMEN T YEAR 2006-07 THE ORDERS OF LOWERS AUTHORITIES ON THIS ISSUE ARE SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RECONSIDER THE ISSUE IN THE LIGHT OF DIRECTIONS ISSUED FOR THE ASS ESSMENT YEAR 2006-07 AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 18. COMING TO THE APPEALS FOR THE ASSESSMENT YEARS 2008-09 AND 2009- 10 THE FIRST ISSUE RAISED IN THE APPEALS PERTAINS TO ESTIMATION OF AGRICULTURAL INCOME. THE ISSUE IS IDENTICAL TO GROUND NO.2 RAIS ED FOR THE ASSESSMENT YEAR 2006-07 WHERE WE HAVE RESTORED THE ISSUE TO TH E FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION AFTER VERIFYING THE BOO KS OF ACCOUNT MAINTAINED BY THE ASSESSING OFFICER. WHILE DECIDING THE APPEA L FOR THE ASSESSMENT 12 ITA NO. 291 TO 297/COCH/2012 YEAR 2007-08 DECISION ARRIVED AT FOR ASSESSMENT YE AR 2006-07 HAS BEEN FOLLOWED. IN THE APPEALS FOR ASSESSMENT YEARS 2008 -09 AND 2009-10 ALSO THE FACTS AND CIRCUMSTANCES ARE ADMITTEDLY ONE AND THE SAME. THEREFORE FOLLOWING THE DECISION FOR ASSESSMENT YEARS 2006-07 AND 2007-08 THE ORDERS OF LOWERS AUTHORITIES FOR ASSESSMENT YEARS 2 008-09 AND 2009-10 ON THIS ISSUE ARE SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER TH E ISSUE IN THE LIGHT OF DIRECTIONS ISSUED FOR THE ASSESSMENT YEAR 2006-07 A FTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 19. THE NEXT ISSUE IN THE APPEALS FOR ASSESSMENT YE ARS 2008-09 AND 2009-10 IS WITH REGARD TO DISALLOWANCE OF DEPRECIAT ION. 20. SHRI MATHEW JOSEPH THE LD.REPRESENTATIVE FOR T HE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION CLAIMED ON THE BUILDING ON THE GROUND THAT THE BUILDING WAS NO T USED FOR BUSINESS PURPOSE. ACCORDING TO THE LD.REPRESENTATIVE THE A SSESSEE IS IN THE BUSINESS OF HOSPITALITY MAINLY WITH BOATING IN THE BACK WATERS OF KERALA. TOURISTS FROM DIFFERENT PARTS OF THE WORLD ARRIVE A ND USE THE BUILDING FOR PERSONAL NEEDS AND FOOD IS SERVED IN THE BUILDING B EFORE BOATING AND AFTER BOATING. THE BUILDING WOULD ALSO BE USED AFTER THE BOATING. ACCORDING TO THE LD.REPRESENTATIVE THE KITCHEN IN THE BUILDING IS USED FOR COOKING FOODS FOR TOURISTS. ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSING OFFICER 13 ITA NO. 291 TO 297/COCH/2012 REJECTED THE CLAIM OF DEPRECIATION ON THE GROUND TH AT RENTAL INCOME WAS NOT RECEIVED DURING THE YEAR. WHEN THE BUILDING WAS US ED FOR BUSINESS OF THE ASSESSEE FOR COOKING FOOD FOR THE TOURISTS AS ALSO FOR THE USE OF THE TOURISTS BEFORE AND AFTER BOATING ACCORDING TO THE LD.REPRE SENTATIVE THE BUILDING IS USED FOR BUSINESS; HENCE ENTITLED FOR DEPRECIATION . 21. ON THE CONTRARY SMT. VIJAYAPRABHA THE LD.DR S UBMITTED THAT THE ASSESSEE CLAIMED THAT THE BUILDING WAS CONSTRUCTED DURING THE FIRST HALF OF THE ACCOUNTING YEAR AND THE SAME WAS COMPLETED DURI NG THE SECOND HALF OF THE ACCOUNTING YEAR UNDER CONSIDERATION. NO INC OME WAS DISCLOSED FROM THE BUILDING. THEREFORE ACCORDING TO THE LD. DR THE BUILDING WAS NOT PUT TO USE FOR THE PURPOSE OF BUSINESS. ACCORDING TO THE LD.DR UNLESS THE BUILDING WAS PUT TO USE IN THE BUSINESS THE ASSESS EE IS NOT ENTITLED FOR ANY DEPRECIATION. 22. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSE SSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT NO INC OME WAS DISCLOSED FOR UTILIZATION OF THE BUILDING. HOWEVER THE ASSESSEE CLAIMS THAT THE BUILDING WAS USED FOR BUSINESS AND IT WAS USED BY THE TOURIS TS BEFORE AND AFTER BOATING. THE FOOD WAS COOKED IN THE KITCHEN FOR TH E TOURISTS. THIS CLAIM OF 14 ITA NO. 291 TO 297/COCH/2012 THE ASSESSEE WAS NOT EXAMINED BY THE LOWER AUTHORIT IES. THEREFORE THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CLAI M OF THE ASSESSEE THAT BUILDING WAS USED BY THE TOURISTS BEFORE AND AFTER THE BOATING AND FOOD WAS ALSO COOKED THERE FOR TOURISTS NEEDS TO BE VERI FIED AND EXAMINED BY THE ASSESSING OFFICER. THEREFORE THE ORDERS OF LO WER AUTHORITIES FOR ASSESSMENT YEARS 2008-09 AND 2009-10 ON THIS ISSUE ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSES SING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AFTER VERIFYING THE CLAIM MADE BY THE ASSESSEE AND DECIDE THE ISSUE AFRESH IN ACCO RDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 23. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST JULY 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 31 ST JULY 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH