ACIT, Ernakulam v. Mariamma George Vettath, Ernakulam

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T. (S&S) A.NO. 38 /COCH/2006 BLOCK PERIOD:01 - 04 - 1995 TO 04 - 10 - 2001 THE ASSIST.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1 ERNAKULAM. VS. SMT. MARIAMMA GEROGE VETTATH ERNAKULAM. PA NO.AATPV 5743Q (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI T . J . VINCENT JR. DR RESPONDENT BY SHRI R.SREEKANTAN NAIR O R D E R PER N.VIJAYAKUMARAN J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(APPEALS)-I KOCHI DATED 01-02- 2006. THE BLOCK PERIOD IS 01-04-1995 TO 04-10-2001. 2. THE FIRST ISSUE IS ON THE DELETION OF ADDITION O F RS.2 58 000/- BEING THE ALLEGED INVESTMENT FOR PURC HASE OF AMBASSADOR CAR. THE LD. CIT(APPEALS) ACCEPTED THE SOURCE AS OUT OF RENTAL INCOME OF THE ASSESSEE RETURNED. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD. COUNSEL FO R THE IT(S&S)A NO.38/COCH/2006 2 ASSESSEE INVITED OUR ATTENTION TO THE CROSS APPEAL FILED BY THE ASSESSEE [IT(S&S)A NO.25/COCH/2006] FOR THE VER Y SAME BLOCK PERIOD ARISING OUT OF THE VERY SAME ORDER OF THE CIT(APPEALS) AND THE TRIBUNAL VIDE ITS ORDER DATED 11-02- 2010 REMITTED THE ISSUE BACK TO THE FILE OF THE ASS ESSING OFFICER FOR PROPER ADJUDICATION. SO FAR AS 44AE I S CONCERNED THIS ISSUE WAS NOT PRESSED IN THE ASSESS EES APPEAL CITED SUPRA. THEREFORE THIS ADDITION U/S. 44AE IN RESPECT OF TANKER LORRY WAS DECIDED AGAINST THE ASS ESSEE AND IN FAVOUR OF THE REVENUE. AS THE MAIN ISSUE REGA RDING THE ADDITION OF RS.5 07 022/- THE ISSUE WAS REMITTED B ACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATI ON. HENCE WE DEEM IT JUST AND PROPER IN THIS DEPARTMENTAL APP EAL ALSO TO REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSIN G OFFICER BY SETTING ASIDE THE ORDER OF THE CIT(APPEALS) FOR PRO PER ADJUDICATION ON MERITS OF THIS ALLEGED INVESTMENT F OR THE PURCHASE OF AMBASSADOR CAR. HENCE THIS GROUND IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4. COMING TO THE OTHER ISSUE I.E. SURCHARGE U/S.11 3 WE FIND THAT NOW THIS ISSUE IS COVERED BY THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. RAJIV BHATARA - 310 ITR 105 AGAINST THE ASSESSEE . RESPECTFULLY FOLLOWING IT(S&S)A NO.38/COCH/2006 3 THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT W E SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) ON THIS IS SUE AND ALLOW THE APPEAL OF THE DEPARTMENT IN RESPECT OF LE VY OF SURCHARGE U/S.113 OF THE ACT. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S PARTLY ALLOWED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM DATED THE 26 TH AUGUST 2010. PM. COPY FORWARDED TO: 1. SMT. MARIAMMA GEROGE VETTATH VETTATH HOUSE WARRIAM ROAD ERNAKULAM. 2. THE ACIT. CENTRAL CIRCLE-1 ERNAKULAM. 3. CIT(A)-I KOCHI 4. CIT CENTRAL KOCHI 5. D.R.