ACIT, Kollam v. Shri. Hassan Azeez, Kollam

ITA 551/COCH/2011 | 2009-2010
Pronouncement Date: 31-07-2013 | Result: Partly Allowed

Appeal Details

RSA Number 55121914 RSA 2011
Assessee PAN ADCPA4547E
Bench Cochin
Appeal Number ITA 551/COCH/2011
Duration Of Justice 1 year(s) 9 month(s) 27 day(s)
Appellant ACIT, Kollam
Respondent Shri. Hassan Azeez, Kollam
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2013
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 31-07-2013
Date Of Final Hearing 25-07-2013
Next Hearing Date 25-07-2013
Assessment Year 2009-2010
Appeal Filed On 03-10-2011
Judgment Text
ITA NO. 551/ COCH/ 2011 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH COCHIN BEFORE S/SHRI N.R.S. GANESAN JM & B. R. S BASKARAN AM ITA NO. 551 /COCH/ 2011 (ASST YEAR 2009 - 10 ) THE ASST COMM ISSIONER OF INCOME TAX CENTRAL CIRCLE KOLLAM VS SHRI HASSAN AZEEZ ALIYA CASHEW EXPORTS CHANDANATHOPE KOLLAM ( APPELLANT) (RESPONDENT) PAN NO. ADCPA4547E ASSESSEE BY SHRI A S NARAYANAMOORTHY REVENUE BY SMT S VIJAYAPRABHA JR DR DATE OF HEARING 25 TH JULY 2013 DATE OF PRONOUNCEMENT 31 ST JULY 2013 OREER PER B.R. BASKARAN AM: THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27 TH JULY 2011 PASSED BY THE LD CIT(A) - II KOCHI AND IT RELATES TO THE AY 2009 - 10. 2 THE REVENUE IS ASSAILING THE DECISION OF THE LD CIT (A) IN GRANTING PARTIAL RELIEF I N RESPECT OF THE BUSINESS INCOME ESTIMATED BY THE AO. 3 THE FACTS RELATING TO THE SAID ISSUE ARE STATED IN BRIEF: THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROCESSING AND EXPORTING OF CASHEW KERNELS. DURING THE COURSE OF SEARCH OPERATION CONDUCTED AT THE PREMISES PODKUNJ MUSALIAR MEMORIAL CHARITABLE & EDUCATIONAL TRUST KOLLAM CERTAIN DOCUMENTS RELATING TO THE ASSESSEE WERE FOUND AND SEIZED. CONSEQUENTLY THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION W AS INITIATED U/S 153C OF THE ITA NO. 551/ COCH/ 2011 2 ACT IN THE HANDS OF THE ASSESS EE . HOWEVER T HE ASSESSEE DID NOT RESPOND TO ANY OF THE NOTICES ISSUED BY THE AO. ACCORDINGLY THE AO PROCEEDED TO ESTIMATE THE INCOME OF THE ASSESSEE TO THE BEST OF HER JUDGEMENT U/S 144 OF THE ACT AND FOR THAT PURPOSE THE AO PLACED RELIANCE ON THE S EIZED DOCUMENT VIZ. KJJ - II - 45 WHICH CONTAINED EXPORT BILLS RAISED BY THE ASSESSEE IN THE MONTHS OF MAY AND JULY 2008 . THE AO NOTICED THAT THE AGGREGATE VALUE OF SALES IN THE TWO BILLS RELATING TO THE MONTH OF MAY WAS RS. 71.82 LACS. IN THE IMMEDIATELY PRECEDING YEAR THE ASSESSEE HAD DECLARED A TURNOVER OF RS. 10.43 CRORES. ACCORDINGLY THE AO ESTIMATED THE TURNOVER OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AT RS. 11.00 CRORES AND FURTHER ESTIMATED THE INCOME OF THE ASSESSEE AT 2% OF THE ESTIMA TED TURNOVER. ACCORDINGLY THE AO COMPLETED THE ASSESSMENT. 4 IN THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A) THE ASSESSEE FURNISHED COPIES OF RETURNS FILED BEFORE THE COMMERCIAL TAX DEPARTMENT (VAT RETURNS) AND CONTENDED THAT THE TURNOVER OF THE ASS ESSEE FOR THE YEAR UNDER CONSIDERATION WAS ONLY RS. 1 00 64 251/ - . BASED ON THE VAT RETURN AND ALSO THE SEIZED MATERIAL THE LD CIT(A) ESTIMATED THE TURNOVER OF THE ASSESSEE AT RS. 2.07 CRORES AND ACCORDINGLY ESTIMATED THE BUSINESS INCOME AT 2% OF RS.2 .07 CRORES. THUS THE LD CIT(A) DETERMINED THE INCOME OF THE ASSESSEE AT RS.4 15 625/ - . AGGRIEVED THE REVENUE FILED THIS APPEAL BEFORE US. 5 THE LD DR SUBMITTED THAT THE AO WAS CONSTRAINED TO COMPLETE THE ASSESSMENT TO THE BEST OF H ER JUDGMENT U/S 144 OF THE ACT IN VIEW OF THE FAILURE OF THE ASSESSEE TO RESPOND TO ANY OF THE NOTICES ISSUED BY THE AO. HOWEVER THE ASSESSEE HAS FILED THE COPIES OF VAT RETURNS AND BY CONSIDERING THOSE FRESH MATERIALS THE LD CIT(A) HAS GRANTED PARTIAL RELIEF TO THE ASSE SSEE. THE LD DR SUBMITTED THAT THE LD CIT(A) DID NOT AFFORD PROPER OPPORTUNITY TO THE AO ITA NO. 551/ COCH/ 2011 3 TO EXAMINE THE FRESH DOCUMENTS FILED BEFORE HIM FOR THE FIRST TIME AND HENCE IT VIOLAT ES RULE 46 A OF THE I T RULES. ACCORDINGLY THE LD DR CONTENDED THAT THE AO SH OULD BE AFFORDED NECESSARY OPPORTUNITY TO EXAMINE THE FRESH DOCUMENTS ON THE BASIS OF WHICH THE LD CIT(A) TOOK HIS DECISION. 6 THE LD AR DID NOT OBJECT TO THE PLEA MADE BY THE LD DR. 7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. ADMITTE DLY THE LD CIT(A) GRANTED PARTIAL RELIEF TO THE ASSESS EE ON THE BASIS OF THE VAT RETURN S WHICH WERE PRODUCED BEFORE HIM FOR THE FIRST TIME BY THE ASSESSEE. ADMITTEDLY THE LD CIT(A) DID NOT AFFORD AN OPPORTUNITY TO THE AO TO EXAMINE THE NEW DOCUMENTS A ND EXPRESS HIS OPINION. ACCORDINGLY AS CONTENDED BY THE LD DR THERE IS A VIOLATION OF RULE 46 A OF I T RULES. HENCE WE FIND MERIT IN THE PLEA MADE BY THE LD DR. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD CIT(A) ON THIS ISSUE AND RESTORE THE MATTER T O THE AO WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH AFTER CONSIDERING THE DOCUMENTS THAT WERE FILED BEFORE THE LD CIT(A) AND ALSO BY CONSIDERING ANY OTHER DOCUMENTS AND/OR EXPLANATIONS THAT MAY BE FURNISHED BEFORE HIM AND TAKE APPROPRIATE DECISION IN A CCORDANCE WITH LAW AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 IN THE RESULT THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY 2013. SD/ - SD/ - (N.R.S. GANESAN) ( B.R. BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER COCHIN: DATED 31 ST JULY 2013 RAJ* ITA NO. 551/ COCH/ 2011 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT COCHIN