THE COMMISSIONER OF INCOME TAX(CENTRAL) vs. M/S P.H.MOHAMMED KUNJU AND BROTHERS,KOCH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939 ITA.No. 92 of 2011 ( ) ----------------------- AGAINST THE ORDER/JUDGMENT IN ITA 389/COCH/2009 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 15-03-2011 APPELLANT(S): ----------------- THE COMMISSIONER OF INCOME TAX (CENTRAL), COCHIN.

BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): -------------------- M/S P.H.MOHAMMED KUNJU AND BROTHERS, MARKET ROAD, KOCHI - 682 031.

R,1 BY ADV. SRI.JOSEPH MARKOSE (SR.) R1 BY ADV. SRI.MOHAMMED RAFIQ THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA.No. 92 of 2011 ( ) : 2 : APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A : TRUE COPY OF ASSESSMENT ORDER DATED 31.12.2017. ANNEXURE B : TRUE COPY OF ORDER OF CIT(A)-111 DATED 09.04.2009 ANNEXURE C : TRUE COPY OF ITAT'S ORDER DATED 15.03.2011. ANNEXURE D : TRUE COPY OF ITAT'S ORDER IN THE CASE OF SELLERS AFFIRMING THE ASSESSMENT ORDER DATED 20.02.2009 & 30.04.2010. RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE. rv

ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ---------------------------------------------- I.T. Appeal No. 92 of 2011 --------------------------------------------- Dated this the 10th day of October, 2017. JUDGMENT Antony Dominic, J. This appeal filed by the Revenue is against the order passed by the Income Tax Appellate Tribunal, Cochin Bench in I.T.A. No. 389/Coch/2009 concerning the assessment year 2005-2006. By the said order, the Tribunal held that the assessment officer was not justified in making addition of `54,74,200/- under Section 69C of the Income Tax Act. On that basis, the orders of the assessing officer and the first appellate authority were set aside. It is aggrieved by this order, the Revenue has filed this appeal framing the following questions of law for the consideration of this Court: 1. Whether, on the facts and in the circumstances of the case the Tribunal is right in law in deleting the addition made on account of unexplained investment in property on the ground that the assessment was based on a computer printout which was not seized from the assessee's premises and it was not signed by the assessee? 2. Whether, on the facts and in the circumstances of the case the Tribunal is right in law in deleting the addition on account of unexplained investment in property in the hands of the purchaser when the assessment in the case of the sellers adopting the same value was confirmed by the ITAT by order marked Annexure D? 3. 4. Whether, on the facts and in the circumstances of the case the Tribunal is right in law holding that evidence should be

I.T.A. No. 92/2011 -2- obtained from the premises of the assessee and should be signed by the assesee for its application in assessment when the veracity of the document had been proved already? 5. Whether on the facts and in the circumstances of the case and in the light of the ground raised, the ITAT is right in law and fact in interfering with the assessment? 2. We heard the learned Senior Counsel for the Revenue and the learned Senior Counsel for the assessee. 3. From the order impugned, we find that there was a search under Section 132 of the Act in the premises of the assessee on 05.10.2005. In the previous year to the assessment year, the assessee had purchased 60.412 cents of land from 3 persons and in the accounts, the value of the property was shown as `1,57,36,700/-. However, from the residences of the two sellers, a paper giving details of the consideration given was found and it is revealed that the actual consideration paid was `2,03,20,100/-. When confronted, two sellers confirmed the excess payment, while one denied the allegations. This led to an assessment and an addition under Section 69C of the Act and the same was confirmed by the first appellate authority. It is this order which was challenged by the assessee in the Tribunal. 4. A reading of the order passed by the Tribunal shows that the Tribunal had followed the orders passed by it in the case of one of the sellers and it is primarily following that order the appeal was allowed.

I.T.A. No. 92/2011 -3- We find that the aforesaid order followed by the Tribunal was in I.T.A.Nos. 822 and 823 of 2008 and that these orders were the subject matter of I.T.A Nos. 360 and 392 of 2010 before this Court and that by judgment dated 18.07.2011, this Court set aside the orders and remitted the matter to the Commissioner (Appeals). Civil Appeals filed by the assessee against the judgment of this Court were also disposed of confirming the judgment and directing consideration of the additional issues. 5. Evidently therefore, the order on which the Tribunal placed reliance has been set aside by this Court, and for that reason itself the order impugned in this appeal also deserves to be set aside. Therefore, without answering the questions of law, the impugned order is set aside and the matter is remitted to the CIT (Appeals) for re-consideration of the matter with notice to the assessee. This appeal is disposed of accordingly.

ANTONY DOMINIC, JUDGE. DAMA SESHADRI NAIDU, JUDGE. Rv

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