Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 67 OF 2018 AGAINST THE ORDER IN ITA 425/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S:
K.M.FATHIMA 05_04_2022 at 8.30 p mAGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T. USHA ROAD, CALICUT.
BY ADVS. HARISANKAR V. MENON; MEERA V.MENON
RESPONDENT/S:
COMMISSIONER OF INCOMETAX CENTRAL CIRCLE, KOCHI-682 013 OTHER PRESENT:
SC JOSE JOSEPH THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.74/2018, 66/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 74 OF 2018 AGAINST THE ORDER IN ITA 424/2016 OF I.T.A.TRIBUNAL, COCHIN BENCH APPELLANT/S:
K.M.FATHIMA AGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T.USHA ROAD, CALICUT.
BY ADVS. HARISANKAR V. MENON MEERA V.MENON
RESPONDENT/S:
COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOCHI - 682 013. SC JOSE JOSEPH THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.67/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 66 OF 2018 AGAINST THE ORDER IN ITA 426/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S:
K.M. FATHIMA AGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T. USHA ROAD, CALICUT
BY ADVS. HARISANKAR V. MENON MEERA V.MENON K.KRISHNA
RESPONDENT/S:
COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOCHI – 682013 SC JOSE JOSEPH THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.67/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 76 OF 2018 AGAINST THE ORDER IN ITA 423/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S:
K.M. FATHIMA, AGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T.USHA ROAD, CALICUT.
BY ADVS. HARISANKAR V. MENON MEERA V.MENON
RESPONDENT/S:
COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOCHI -682013. SC JOSE JOSEPH THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.67/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-5-
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 53 OF 2018 AGAINST THE ORDER IN ITA 422/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S:
K.M. FATHIMA, AGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T.USHA ROAD, CALICUT.
BY ADVS. HARISANKAR V. MENON; MEERA V.MENON R.SREEJITH; K.KRISHNA
RESPONDENT/S:
COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOCHI - 682013.
BY ADVS. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.67/2018 CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 ITA NO. 80 OF 2018 AGAINST THE ORDER IN ITA 427/2016 OF I.T.A.TRIBUNAL, COCHIN BENCH
APPELLANT/S:
K.M. FATHIMA AGED 54 YEARS SHELTER, JAYANTHI NAGAR, P.T.USHA ROAD, CALICUT.
BY ADVS. HARISANKAR V. MENON; MEERA V.MENON; K.KRISHNA
RESPONDENT/S:
COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOCHI-682 013. SC JOSE JOSEPH THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 11.03.2022, ALONG WITH ITA.67/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-7-
J U D G M E N T
[ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018]
S.V. Bhatti, J.
Heard Adv. Meera V Menon and Adv. Jose Joseph for the parties. 2. One K M Fathima, Calicut/assessee, is the appellant in the batch of cases. Commissioner of Income Tax, Central Circle, Kochi/Revenue is the respondent. The assessee, being aggrieved by the common order dated 23.04.2018, is in appeal before this Court under Section 260A of the Income Tax Act 1961 (for short, ‘the Act’). The details of assessment orders, etc., are stated in the following table:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-8-
Sl. No. Assessment Year & Date of Assessment Order Order of Commissioner of Income Tax (Appeals) Income Tax Appellate Tribunal ITA No. 1 2004-05; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 422/C/2016 dt.23.04.2018 53/2018 2 2005-06; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 423/C/2016 dt.23.04.2018 76/2018 3 2006-07; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 424/C/2016 dt.23.04.2018 74/2018 4 2007-08; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 425/C/2016 dt.23.04.2018 67/2018 5 2008-09; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 426/C/2016 dt.23.04.2018 66/2018 6 2009-10; 30.12.2011 ITA C-130-135/Cent/CIT(A)/ IV/ 2011-12 dt.31.03.2016 ITA 427/C/2016 dt.23.04.2018 53/2018
2.1 The assessee is the wife of one K A Rauf and a partner in M/s. Nilambur Traders and Director of K A Latex (P) Ltd, Vazhakkad. On 05.11.2009, a search of the assessee’s husband K A Rauf's residence and his associates were carried out under
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-9-
Section 132 of the Act. On 03.05.2010, based on the documents, details, accounts seized from the premises of K A Rauf, and that the assessee herein is residing in the same ‘Shelter’ of her husband K A Rauf, notice under Section 153A read with Section 153C of the Act was issued. On 17.02.2011, a notice under Section 142(1) of the Act was issued to the assessee. The assessee objected to the notice as follows: (1) The residence “Shelter”, Jayanthi Nagar Colony, is not in the exclusive possession of Shri K A Rauf (2) The seized documents do not constitute valuable articles or things or books of accounts or documents belonging to the assessee herein. Therefore, the reassessment set in motion under Section 153A read with Section 153C of the Act, the re- computation of return etc, is illegal and unauthorised.
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-10-
2.2 The Assessing Authority answered the Principal objection of the assessee namely that the ‘Shelter’ searched by Revenue did not exclusively belong to the assessee’s husband by holding that the objection is not clear whether the search under Section 132 of the Act could be carried out only at places where the assessee has an exclusive right. A power of attorney resulting in the purchase of land and the documents seized constitute the description of documents, articles, and things stated in the seizure. Independent of the above, it is noticed by the assessing authority that, admittedly, the assessee herein is a partner in M/s. Nilambur Traders and Director of K A Latex (P) Ltd were covered by the notice issued under Section 132 of the Act. After rejecting the preliminary objection, the assessing authority examined the details given by the assessee. The assessee claims a source from agricultural income for the slab
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-11-
Assessment Years and the claim of income from agricultural sources is considered and rejected. The order of assessing authority discloses the notices issued calling upon the assessee to furnish details on agricultural income, evidence etc. Since the assessee did not furnish the details, the claim of agricultural income is rejected. By way of illustration, how the primary authority considered the assessee's claim from agriculture from the Assessment Year 2004-05 is reproduced herein: “10. For the A.Y. 2004-05, the assessee has shown an agriculture income of Rs.1,50,000 which is not shown in the original return of income. The assessee has not given any supporting evidence for the agriculture income. The assessee has shown this amount to build up the cash for the future investment made by the assessee. Therefore the agriculture income shown in the cash flow statement is disallowed and added to the total income returned, treating it as income earned by the assessee which is not disclosed to the department. Accordingly, assessment is completed as under:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-12-
INCOME FROM HOUSE PROPERTY As per return
Rs.25,296/- INCOME FROM BUSINESS
As per return
Rs.46,106/- INCOME FROM OTHER SOURCES
As per return
Rs.37,641/- Add: Agriculture income disallowed as discussed above Rs. 1,50,000/- Rs.2,47,043/- Gross Total Income
Rs.3,18,445/- Less: Deduction u/s 80L
Rs. 12,000/- Total Income
Rs.3,06,445/- Rounded off u/s 288A
Rs.3,06,450/-
2.3 Thus, by the assessment order dated 30.12.2011, the actual income of the assessee was rounded up to Rs.3,06,450/- . For the other assessment years, the agricultural income claimed, and total income assessed is stated thus:
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-13-
A.Y. Return of Income Agricultural Income Total income assessed 2004-05 Rs.97,043/- Rs.1,50,000/- Rs.3,06,450/- 2005-06 Rs.69,248 Rs.1,50,000/- Rs.2,19,250/- 2006-07 Rs.1,01,802/- Rs.4,95,000/- Rs.8,35,400/- 2007-08 Rs.3,06,699/- Rs.5,10,000/- Rs.13,66,390/- 2008-09 Rs.3,06,634 Rs.1,00,000/- Rs.4,06,634/- 2009-10 Rs.4,48,333/- Rs.1,00,000/- Rs.5,48,330/-
The assessee filed an appeal before the Commissioner of Income Tax (Appeals). The first ground relates to Section 153A(a) read with Section 153C of the Act. The Commissioner of Income Tax (Appeals) rejected the said contention by holding that the chronology of events and the facts reveal that the assessee is one of the directors along with K A Rauf in K A Latex
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-14-
(P) Ltd. Likewise, a partner in M/s. Nilambur Traders and Proprietor of M/s. K A Traders. A few documents concerning M/s. K A Traders were found and later confirmed. The documents seized show that the case of the assessee comes within the ambit of Section 153A read with Section 153C of the Act and recorded that the requirement under Section 153A read with Section 153C is that if any incriminating documents are found, that constitutes enough circumstances to initiate the proceedings. In this case, a link was established based on a Power of Attorney given by the assessee to Shri Pratap Chandran. This constitutes enough evidence to have initiated the assessment proceedings under Section 153A read with Section 153C. Thus, the objections raised by the appellant on this ground have no substance. It is further held that the assessment orders passed by the Assessing Officer are valid and legal.
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-15-
3.1 The Tribunal, in its common order in paragraph 29, dealt with the appeals filed by the assessee herein. The Tribunal noted that the assessee admittedly has a direct connection with the premises searched by the Department. The documents recovered during the search necessitated initiation of action under Section 153A, read with Section 153C of the Act. From the above narrative, though an objection in law is stated, the objection is not successfully carried to its logical end while referring to the documents on which the Revenue is relying. 4. Though the following grounds, “A: WHETHER the authorities below did not commit an error of law when they upheld the assessment proceedings initiated against the Appellants u/s 153C r/w Sec. 153A NOTWITHSTANDING the fact that the search instituted in the case of Sri Rauf did not result in the recovery of "any cash, jewellery or valuable documents relating to the appellant?
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-16-
B: WHETHER the Proceedings initiated against the Appellant u/s 153A r/w Sec. 153C on the mere ground that the search initiated in the case of Sri Rauf had resulted in the recovery of copy of Power of Attorney granted by the Appellant in favour of the Third Party is legally sustainable? raised in the appeal, the very same argument, which did not find favour with all the three authorities, is reiterated. 5. After appreciating the materials, referring to which proceedings under Section 153A read with Section 153C have been initiated, we find it difficult to appreciate how the assessee can object to the instant enquiry, mainly initiated by reference to documents recovered in the search. We express our agreement with the view expressed by the Commissioner of Income Tax (Appeals) and the Tribunal., which are again based on the documents seized, and the connection the said documents establish with the assessee.
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-17-
The questions are answered in favour of the Revenue and against the assessee. 6. As already marked in paragraph no.2.3, the next question relates to rejecting the claim of agricultural income and treating the income as income from other sources. The assessing authority called upon the assessee to establish the claim of agricultural income. As noted against the Assessment Year 2004- 05, except for claiming the agricultural income, the assessee or the representative who participated in the deliberation did not place any evidence before the assessing authority. The Commissioner of Income Tax (Appeals) examined in detail all these circumstances and rejected the claim of agricultural income held as follows: “This issue has already been dealt with, in the appeal orders of Shri K.A. Rauf, where agricultural income have been disallowed
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-18-
by holding that "the veracity of the claim of such agricultural income has not been established as to what has been the gross receipts and expenses incurred. An income cannot be based on mere presumption that if the assessee owns some agricultural land, the income from agricultural operation arises automatically. In order to establish the income from agriculture the procedures have been laid out for maintaining the details of receipts and expenses which were to be furnished. In view of this, the decision taken by the AO is upheld, and appeal is dismissed.” 6.1 The Tribunal affirmed as follows: “30. The next ground in both the appeals is with regard to non- consideration of agricultural income. 30.1 The facts of the case are that the Assessing Officer found that the agricultural income was not shown in the original returns of income filed. The assessee had not given any supporting evidence for the agricultural income. The assessee had shown this amount to build up cash for future investment. Therefore, the agricultural income shown in the cash statement was disallowed and added to the total income returned, treating it as income earned by the assessee which was not disclosed to
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-19-
the Department. 30.2 On appeal the CIT(A) observed that an income cannot be based on mere presumption that if the assessee owns some agricultural land, the income from agricultural operation arises automatically. In order to establish the income from agricultural land, the procedures have been laid out for maintaining the details of receipts and expenses which were to be furnished. In view of this, the CIT(A) confirmed the decision taken by the Assessing Officer. 30.3 We have heard both the parties and perused the record. As discussed in para 26.6, we do not find any infirmity in the order of the CIT(A) and the same is confirmed. This of appeals of the assessee in all the appeals is rejected. Thus the appeals of the assessee are dismissed.” 7. The following substantial questions of law are stated for consideration by this Court “C: WHETHER the authorities below did not commit an error of law when they held that the onus was on the Appellant to prove that income 10 returned as agricultural income is "not income from other sources" especially when there is no dispute that the appellant owns
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-20-
agricultural plantations? D: WHETHER, in the facts and circumstances of the case, the authorities were right in "treating" the agricultural income disclosed in the Return of Income as "income from other sources"? 7.1 This Court, in the appeals filed by the assessee’s husband, considered the claim of all the assesses subjected to reopening of assessment upon search and seizure. The case of the assessee, for agricultural income, is from two sources of agricultural income. The finding recorded by the Commissioner is that nothing is forthcoming for accepting the agriculture income. Though a general ground is raised, in our considered view, after perusing the findings recorded by all the authorities under the Act on this behalf, we are satisfied that substantial questions do not arise, and we affirm the findings recorded on this behalf. Hence, the questions are answered in favour of the Revenue and against the assessee.
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-21-
The appeals stand dismissed—no order as to costs.
Sd/- S.V.BHATTI JUDGE
Sd/- BASANT BALAJI JUDGE jjj
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-22-
APPENDIX OF ITA 74/2018
PETITIONER ANNEXURES ANNEXURE A PHOTOCOPY OF ASSESSMENT ORDER DATED 30.12.2011. ANNEXURE B PHOTOCOPY OF ORDER OF CIT(A) DATED 31.3.2016 IN ITA-C-130-135/CIT(A) IV/11-12 (COMMON ORDER). ANNEXURE C PHOTOCOPY OF ORDER OF ITA DATED 23.4.2018 IN ITA,.NO, 422-427/C/ 2016 (COMMON ORDER).
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-23-
APPENDIX OF ITA 66/2018
PETITIONER ANNEXURES ANNEXURE-A PHOTOCOPY OF ASSESSMENT ORDER DT.30.12.2011 ANNEXURE-B PHOTOCOPY OF ORDER OF CIT(A) DT 31.03.2016 IN ITS- C-130-135 /CIT(A)-IV/11.12(C0MMON ORDER ) ANNEXURE-C PHOTOCOPY OF ORDER OF ITAT DT.23.04.2018 IN I.T.A.NO.422-427/C/2016 (COMMON ORDER) ANNEXURE-D STATE RECORDED FROM NOTARY PUBLIC ANNEXURE-E PHOTOCOPIES OF NOTICES ISSUED TO AND REPLIES RECEIVED FROM LESSEES
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-24-
APPENDIX OF ITA 76/2018
PETITIONER ANNEXURES ANNEXURE A PHOTOCOPY OF ASSESSMENT ORDER DATED 30.12.2011. ANNEXURE B PHOTOCOPY OF ORDER OF CIT(A) DATED 31.03.2016 IN ITA-C-130/CIT(A)-IV/11.12(COMMON ORDER). ANNEXURE C PHOTOCOPY OF ORDER OF ITAT DATED 23.04.2018 IN I.T.A.NO.422-427/C/2016(COMMON ORDER).
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-25-
APPENDIX OF ITA 53/2018
PETITIONER ANNEXURES ANNEXURE A PHOTOCOPY OF ASSESSMENT ORDER DT. 30.12.2011 ANNEXURE B PHOTOCOPY OF ORDER OF CIT (A) DT. 31.03.2016 IN ITA- C-130-135/CIT(A)-1V/11.12 (COMMON ORDER) ANNEXURE C PHOTOCOPY OF ORDER OF ITAT DT. 23.04.2018 IN I.T.A. NO. 422-427/C/2016 (COMMON ORDER)
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-26-
APPENDIX OF ITA 80/2018
PETITIONER ANNEXURES ANNEXURE A PHOTOCOPYOF ASSESSMENT ORDER DATED 30.12.2011. ANNEXURE B PHOTOCOPY OF ORDER OF CIT(A) DATED 31.3.2016 IN ITA-C-130-135/CIT(A) IV/11.12 (COMMON ORDER) ANNEXURE C PHOTOCOPY OF ORDER OF ITAT DATED 23.4.2018 IN I.T.A.NO.422-427/C/2016 (COMMON ORDER)
ITA Nos.67/2018, 74/2018, 66/2018, 76/2018, 53/2018, 80/2018
-27-
APPENDIX OF ITA 67/2018
PETITIONER ANNEXURES ANNEXURE-A PHOTOCOPY OF ASSESSMENT ORDER DT.30.12.2011 ANNEXURE-B PHOTOCOPY OF ORDER OF CIT(A) DT 31.03.2016 IN ITS- C-130-135 /CIT(A)-IV/11.12(C0MMON ORDER ) ANNEXURE-C PHOTOCOPY OF ORDER OF ITAT DT.23.04.2018 IN I.T.A.NO.422-427/C/2016 (COMMON ORDER) ANNEXURE-D STATE RECORDED FROM NOTARY PUBLIC ANNEXURE-E PHOTOCOPIES OF NOTICES ISSUED TO AND REPLIES RECEIVED FROM LESSEES