M/S Pulpel Garments, Kottayam v. ITO, Kottayam

ITA 464/COCH/2009 | 2006-2007
Pronouncement Date: 29-03-2012 | Result: Allowed

Appeal Details

RSA Number 46421914 RSA 2009
Assessee PAN AAFFP8072Q
Bench Cochin
Appeal Number ITA 464/COCH/2009
Duration Of Justice 2 year(s) 7 month(s) 22 day(s)
Appellant M/S Pulpel Garments, Kottayam
Respondent ITO, Kottayam
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 21-03-2012
Next Hearing Date 21-03-2012
Assessment Year 2006-2007
Appeal Filed On 07-08-2009
Judgment Text
1 ITA NO. 464/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.TA NO. 464/COCH/2009 (ASSESSMENT YEAR 2006-07) & S.A. NO.56/COCH/2009 (ARISING OUT OF I.TA NO. 464/COCH/2009) (ASSESSMENT YEAR 2006-07) M/S PULPEL GARMENTS VS ITO WD.3 KANJIRAPALLY KOTTAYAM PAN : AAFFP8072Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI CBM WARRIER RESPONDENT BY : SMT. VIJAYAPRABHA DATE OF HEARING : 21-03-2012 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 THE COMMISSIONER OF INCOME-TAX(A)-IV KOCHI DATED 22-06-200 9 FOR THE ASSESSMENT YEAR 2006-07. THE STAY APPLICATION FILED BY THE ASS ESSEE SEEKS STAY OF OUTSTANDING DEMAND OF RS.9 80 356. 2 ITA NO. 464/COCH/2009 2. SHRI CBM WARRIER THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS SUFFICIENT OPPORT UNITY WAS NOT PROVIDED FOR FURNISHING THE MATERIAL IN SUPPORT OF THE CLAIM OF THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE THE DETAILS WITH REGARD TO SUNDR Y CREDITORS WERE CALLED FOR ON 15-12-2008. THE ASSESSMENT WAS COMPLETED ON 31-12-2008 . SINCE THE ASSESSEE HAD TO OBTAIN CERTIFICATE FROM THE BANK AS ALSO OTH ER DETAILS 15 DAYS PERIOD WAS NOT SUFFICIENT TO OBTAIN THE CERTIFICATE AND OTHER DETAILS. THEREFORE THE ASSESSEE AFTER COLLECTING THE MATERIAL FILED THE SAME BEFOR E THE COMMISSIONER OF INCOME- TAX(A). HOWEVER THE COMMISSIONER OF INCOME-TAX(A) REJECTED THE APPLICATION OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE O N THE GROUND THAT THERE WAS VIOLATION OF RULE 46A. ACCORDING TO THE LD.REPRESE NTATIVE SINCE THE ASSESSING OFFICER HAS NOT PROVIDED SUFFICIENT OPPORTUNITY TO PRODUCE THE MATERIAL WHICH ARE NECESSARY FOR COMPLETION OF THE ASSESSMENT THE COM MISSIONER OF INCOME-TAX(A) OUGHT TO HAVE ADMITTED THE SAME. THEREFORE ACCORD ING TO THE LD.REPRESENTATIVE THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE A SSESSING OFFICER FOR RECONSIDERATION. REFERRING TO GROUND NO.2 WITH REG ARD TO DISALLOWANCE OF RS.25 000 THE LD.REPRESENTATIVE SUBMITTED THAT THIS ISSUE ALSO MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONS IDERATION. 3. ON THE CONTRARY SMT. VIJAYAPRABHA THE LD.DR SU BMITTED THAT THE ASSESSEE COULD NOT PRODUCE THE MATERIAL BEFORE THE ASSESSING OFFICER. THEREFORE THE COMMISSIONER OF INCOME-TAX(A) ON THE BASIS OF THE J UDGMENT OF THE KERALA HIGH COURT IN C UNNIKRISHNAN VS COMMISSIONER OF INCOME-TAX (1998) 233 ITR 485 (KER) (1998) 233 ITR 485 (KER) REJECTED THE APPLICATION OF THE ASSESSEE FOR ADMITTING ADDITIONAL EVIDENCE. ACCORDING TO THE LD.DR THERE WAS NO REASONABLE CAUSE FOR NOT PRODUCING THE MATERIAL BEFORE THE ASSESSING OFF ICER. THEREFORE THE 3 ITA NO. 464/COCH/2009 COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL PLACED BEFORE US. THE CONTENTION OF T HE ASSESSEE IS THAT THE CERTIFICATE FROM THE BANK AND OTHER DETAILS COULD NO T BE OBTAINED BEFORE 31-12- 2008. IT IS NOT IN DISPUTE THAT AFTER THE CHANGE O F INCUMBENT THE ASSESSING OFFICER CALLED FOR THE DETAILS ON 15-12-2008 WITH REGARD TO S UNDRY CREDITORS. THEREFORE THE AVAILABLE TIME WITH THE ASSESSEE WAS ONLY 15 DA YS FROM THE DATE OF NOTICE. THE ASSESSEE CLAIMS THAT THE PERIOD WAS NOT SUFFICI ENT TO GET THE CERTIFICATE FROM THE BANK AND TO COLLECT OTHER DETAILS. WE FIND SOME JUSTIFICATION ON THE PART OF THE ASSESSEE THAT 15 DAYS TIME MAY NOT BE SUFFICIE NT TO COLLECT THE MATERIAL LIKE A CERTIFICATE FROM THE BANK. THEREFORE GIVING SOME MORE TIME TO THE ASSESSEE TO COLLECT THE MATERIAL MIGHT NOT HAVE PREJUDICED THE INTEREST OF THE REVENUE. THIS TRIBUNAL ALSO APPRECIATE THE COMPULSION ON THE PART OF THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT ON OR BEFORE 31-12-2008. THE REFORE WE CANNOT BLAME THE ASSESSING OFFICER ALSO. ADMITTEDLY THE DETAIL S / MATERIALS WERE CALLED FOR BY THE NEW INCUMBENT IN THE OFFICE OF THE ASSESSING OF FICER ON 15-12-2008. THEREFORE THIS TRIBUNAL IS OF THE OPINION THAT THE ASSESSEE WAS NOT PROVIDED WITH SUFFICIENT TIME FOR PRODUCING THE MATERIAL BEFORE T HE ASSESSING OFFICER. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE KERA LA HIGH COURT IN THE CASE OF C UNNIKRISHNAN (SUPRA). THE KERALA HIGH COURT AFTER C ONSIDERING THE PROVISIONS OF RULE 46A HAS OBSERVED AS FOLLOWS: APART THEREFROM RULE 46A OF THE INCOME-TAX RULES R ELATES TO THE APPELLATE PROCEEDINGS BEFORE THE COMMISSIONER IN THE MATTER OF PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEP UTY COMMISSIONER OF APPEALS AND THE COMMISSIONER (APPEA LS). 4 ITA NO. 464/COCH/2009 REFERENCE TO THE CONTENTS OF THE SAID RULE WOULD SH OW THAT SUCH PRODUCTION IS CONDITIONED BY CERTAIN SITUATIONS. T HE ASSESSEE HAS TO SHOW THAT THE ASSESSING OFFICER HAS REFUSED TO ADMI T THE EVIDENCE. THE ASSESSEE ALSO HAS TO SHOW ALTERNATIVELY THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE BEF ORE THE ASSESSING OFFICER. ALTERNATIVELY FURTHER THE ASSES SEE ALSO HAS TO SHOW ITS RELEVANCE TO THE GROUNDS OF APPEAL SOUGHT TO BE URGED. LASTLY THE ASSESSEE ALSO HAS TO ESTABLISH THAT THE ASSESSING OFFICER DID NOT AFFORD HIM SUFFICIENT OPPORTUNITY IN REGARD THERETO. IN VIEW OF THIS JUDGMENT OF THE KERALA HIGH COURT O NCE THE ASSESSEE ESTABLISHED THAT THE ASSESSING OFFICER DID NOT OFFER HIM SUFFIC IENT OPPORTUNITY FOR PRODUCING THE MATERIAL THE COMMISSIONER OF INCOME-TAX(A) OUGH T TO HAVE ADMITTED THE ADDITIONAL EVIDENCE FOR THE PURPOSE OF DECIDING THE CASE ON MERIT. SINCE THIS TRIBUNAL IS OF THE OPINION THAT SUFFICIENT OPPORTUN ITY WAS NOT AFFORDED BY THE ASSESSING OFFICER FOR PRODUCING THE MATERIAL THE J UDGMENT OF THE KERALA HIGH COURT IN C UNNIKIRHSNAN (SUPRA) SUPPORTS THE CASE OF THE ASSESSEE RATHER THAN THE DEPARTMENT. THEREFORE BY FOLLOWING THE JUDGMENT OF THE KERALA HIGH COURT IN C UNNIKRISHNAN (SUPRA) THIS TRIBUNAL IS OF THE OPINIO N THAT THE ADDITIONAL EVIDENCE NEEDS TO BE ADMITTED AND HAS TO BE EXAMINED. SINCE THE LOWER AUTHORITIES HAVE NOT EXAMINED THE ADDITIONAL EVIDENCE THIS TRIBUNAL IS OF THE OPINION THAT THE ADDITIONAL EVIDENCE HAS TO BE FIRST EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ENTIRE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICE R FOR CONSIDERATION OF THE EVIDENCE THAT IS FILED BEFORE THE COMMISSIONER OF I NCOME-TAX(A) AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING RE ASONABLE OPPORTUNITY TO THE ASSESSEE. 5. THE NEXT GROUND OF APPEAL IS ALSO WITH REGARD TO DISALLOWANCE OF RS.25 000 FOR NOT MAINTAINING PROPER VOUCHER. SINCE THE IMPU GNED ADDITION WITH REGARD TO 5 ITA NO. 464/COCH/2009 SUNDRY CREDITOR WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RE- CONSIDERATION THIS TRIBUNAL IS OF THE OPINION THAT THIS ISSUE ALSO NEEDS TO BE SET ASIDE. ACCORDINGLY THE ORDER OF THE LOWER AUTHORI TY IS SET ASIDE AND THE ENTIRE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE IN THE LIGHT OF THE ADDIT IONAL EVIDENCE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDAN CE WITH LAW AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. SINCE THE APPEAL IS DISPOSED OF THE STAY APPLIC ATION IS DISMISSED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE AND THE STAY APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 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/S PULPEL GARMENTS KANJIRAPALLY 2. ITO WD.3 KOTTAYAM 3. THE COMMISSIONER OF INCOME-TAX KANNUR 4. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH