ACIT, Ernakulam v. M.S. Rathi, Ernakulam

ITSSA 18/COCH/2008 | 2002-2003
Pronouncement Date: 29-03-2012 | Result: Dismissed

Appeal Details

RSA Number 1821916 RSA 2008
Assessee PAN AGEPR8883N
Bench Cochin
Appeal Number ITSSA 18/COCH/2008
Duration Of Justice 4 year(s) 23 day(s)
Appellant ACIT, Ernakulam
Respondent M.S. Rathi, Ernakulam
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 29-03-2012
Date Of Final Hearing 08-03-2012
Next Hearing Date 08-03-2012
Assessment Year 2002-2003
Appeal Filed On 07-03-2008
Judgment Text
1 ITSS NO.18/COCH/2008 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(SS)A NO. 18/COCH/2008 (ASSESSMENT YEAR 2002-03) THE ASSIST.COMMISSIONER OF INCOME-TAX VS M.S. RATH I CENTRAL CIRCLE-1 M/S LAKSHMI HOSPITAL ERNAKULAM DIWANS ROAD ERNAKULAM PAN : AGEPR8883N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.J. VINCENT RESPONDENT BY : SHRI C.B.M. WARRIER DATE OF HEARING : 08-03-2012 DATE OF PRONOUNCEMENT : 29-03-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE WAS EARLIER DISPOSED OF BY THIS TRIBUNAL BY AN ORDER DATED 26-07-2011. HOWEVER THE ASSESSEE FILED A MISCELLANEOUS APPLICATION IN M.A. NO. 31/COCH/2011. THIS TRIBUNAL AFTER CON SIDERING THE CIRCULAR ISSUED BY THE CBDT FIXING THE MONETARY LIMIT FOR FILING THE A PPEAL BEFORE THIS TRIBUNAL AND THE PROVISIONS OF SECTION 268A OF THE ACT RECALLED THE ORDER OF THIS TRIBUNAL DATED 26-07-2011. ACCORDINGLY THE APPEAL IS AGAIN POSTED F OR DISPOSAL. 2. DURING THE COURSE OF HEARING SHRI C.B.M. WARRIER THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN A 2 ITSS NO.18/COCH/2008 LAKH RUPEES. THEREFORE THE REVENUE SHOULD NOT HAVE FILED THE APPEAL BEFORE THIS TRIBUNAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT . ON A QUERY FROM THE BENCH WHEN THIS TRIBUNAL CONFIRMED THE ADDITION MADE BY T HE ASSESSING OFFICER BY REVERSING THE ORDER OF THE COMMISSIONER OF INCOME-TA X(A) FOR THE ASSESSMENT YEAR 2001-02 COULD THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) BE CONFIRMED ON THE GROUND THAT THE MONETARY LIMIT WAS LESS THAN A LAKH RUPEES BY FOLLOWING THE CIRCULAR ISSUED BY THE CBDT? THE LD. REPRESENTATIVE AFTER REFERRING TO BOTH THE APPEALS SUBMITTED THAT FOR THE ASSESSME NT YEAR 2001-02 THE ADDITION MADE WAS TOWARDS DEPOSIT MADE IN ANDHRA BANK AND HDF C BANK. FOR THE ASSESSMENT YEAR 2002-03 THE ADDITION WAS MADE BY TH E ASSESSING OFFICER TOWARDS SHORTAGE OF FUNDS AND DEPOSIT OF RS.75 000 IN HDFC BANK. THIS TRIBUNAL AFTER CONSIDERING THE FACTS OF THE CASE FOR ASSESSM ENT YEAR 2001-02 HAS CONFIRMED THE ADDITION AND REVERSED THE ORDER OF THE COMMISSI ONER OF INCOME-TAX(A). FOR THE ASSESSMENT YEAR 2002-03 THE ADDITION WAS WITH RE GARD TO SHORTAGE OF FUND IN THE CAPITAL ACCOUNT AND THE DEPOSIT OF RS.75 000 WA S IN RESPECT OF DEPOSIT WITH HDFC. THE DEPOSIT FOR THIS YEAR WAS MADE INDEPENDE NTLY AND IT HAS TO BE EXAMINED INDEPENDENTLY. THE FINDING IF ANY RECORD ED FOR THE ASSESSMENT YEAR 2001-02 MAY NOT BE RELEVANT FOR THE ASSESSMENT YEAR 2002-03. IN OTHER WORDS ACCORDING TO THE LD.REPRESENTATIVE THE FINDING REC ORDED BY THIS TRIBUNAL FOR ASSESSMENT YEAR 2001-02 IS NOT A RELEVANT CONSIDERAT ION FOR EXAMINING THE ISSUE ARISING FOR CONSIDERATION FOR THE ASSESSMENT YEAR 2 002-03. THAT IS WHY ACCORDING TO THE LD.REPRESENTATIVE THIS TRIBUNAL REJECTED TH E MISCELLANEOUS APPLICATION OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 AND ALL OWED THE MISCELLANEOUS APPLICATION FOR ASSESSMENT YEAR 2002-03. THEREFORE BOTH THE APPEALS ARE INDEPENDENT AND SEPARATE. 3 ITSS NO.18/COCH/2008 3. ON THE CONTRARY SHRI T.J. VINCENT THE LD.DR SU BMITTED THAT SINCE THIS TRIBUNAL HAS ALREADY TAKEN A VIEW ON MERIT IT MAY N OT BE CORRECT TO DISMISS THE APPEAL AGAIN ON THE MONETARY GROUND. ACCORDING TO THE LD.REPRESENTATIVE THE CIRCULAR ISSUED BY THE CBDT IS NOT BINDING ON THIS TRIBUNAL THEREFORE THE APPEAL HAS TO BE DISPOSED OF ON MERIT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CONTENTION O F THE REVENUE IS THAT SINCE THE TRIBUNAL HAS ALREADY TAKEN A VIEW FOR THE ASSESSMENT YEAR 2002-03 ON MERIT. IT CANNOT BE DISPOSED OF ON MONETARY LIMIT. THE CONTE NTION OF THE ASSESSEE IS THAT ON THE APPLICATION FILED BY THE ASSESSEE IN MISCELL ANEOUS APPLICATION IN M.A. NO.31/COCH/2011 THIS TRIBUNAL RECALLED THE ORDER O F THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2002-03 FOR CONSIDERING THE CIRCULA R OF THE CBDT. THEREFORE THIS TRIBUNAL HAS EXPRESSED THE OPINION CLEARLY THAT THE CIRCULAR OF THE CBDT FIXING THE MONETARY LIMIT FOR FILING THE APPEAL BEFORE THIS TR IBUNAL HAS TO BE CONSIDERED WHILE DISPOSING OF THE APPEAL. 5. THIS TRIBUNAL IS CONSCIOUS THAT JUDICIAL DISCIPL INE REQUIRES CONSISTENCY IN JUDICIAL PROCEEDINGS. ON SAME SET OF MATERIAL FACT S THIS TRIBUNAL IS EXPECTED TO TAKE AN IDENTICAL VIEW. AS RIGHTLY SUBMITTED BY THE LD.REPRESENTATIVE FOR THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 THE ADDITIO N WAS WITH REGARD TO THE DEPOSIT MADE WITH ANDHRA BANK AND HDFC BANK. THE DEP OSIT WAS INDEPENDENTLY BEEN MADE. IT HAS NO CONNECTION WITH THE DEPOSIT M ADE FOR THE ASSESSMENT 2002-03. THE FINDING RECORDED BY THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2001-02 CANNOT BE RELEVANT FOR DISPOSING OF THE GROUNDS RAI SED BY THE REVENUE FOR THE ASSESSMENT YEAR 2002-03. IN OTHER WORDS THE MATERI AL FACTS AVAILABLE ON RECORD ARE DIFFERENT AND DISTINCT FOR EACH ASSESSMENT YEAR . THEREFORE FOR THE 4 ITSS NO.18/COCH/2008 ASSESSMENT YEAR 2002-03 THIS TRIBUNAL IS OF THE OPIN ION THAT THE MONETARY LIMIT FIXED BY THE CBDT IS APPLICABLE. 6. THIS TRIBUNAL IS CONSCIOUS THAT THE CIRCULAR ISS UED BY THE CBDT IS BINDING ONLY ON ITS SUBORDINATE OFFICERS AND NOT ON THE TRI BUNAL. THEREFORE THE SUBORDINATE OFFICERS VIZ. THE ASSESSING OFFICER AN D THE COMMISSIONERS ARE EXPECTED TO FOLLOW THE CIRCULAR ISSUED BY THE CBDT. WHEN THE CBDT HAS INSTRUCTED THE SUBORDINATE OFFICERS NOT TO FILE AN APPEAL BEFORE THIS TRIBUNAL WHEREVER THE TAX EFFECT IS BELOW RS.2 LAKHS IT IS THE BOUNDEN DUTY OF THE ASSESSING OFFICER TO FOLLOW THE CIRCULAR IN LETTER AND SPIRIT. THEREFORE THE APPEAL FILED BY THE REVENUE CONTRARY TO THE INSTRUCTION IS SUED BY THE CBDT FIXING THE MONETARY LIMIT IS NOT MAINTAINABLE BEFORE THIS TRIB UNAL. ACCORDINGLY THIS APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2002-03 IN IT(SS) A NO.18/COCH/2008 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. THE ASSIST.COMMISSIONER OF INCOME-TAX CENT.CIR.1 ERNAKULAM 2. M.S. RATHI M/S LAKSHMI HOSPITAL DIWANS ROAD ERNAKU LAM 3. THE COMMISSIONER OF INCOME-TAX(A)-I KOCHI 4. THE COMMISSIONER OF INCOME-TAX CENTRAL KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH