MALABAR CEMENTS LIMITED vs. ASSISTANT COMMISSIONER OF INCOME-TAX

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ITA NO. 8 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITED AGED 54 YEARS WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - AABCM5814C), PIN - 678624 BY ADVS. ABRAHAM JOSEPH MARKOS V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAX PALAKKAD, PIN – 678001 BY ADVS. KEERTHIVAS GIRI SC-P.G.JAYASHANKAR. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, ALONG WITH ITA.11/2023, 12/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.8,11,12 and 13 of 2023 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ITA NO. 11 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITED AGED 54 YEARS WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - AABCM5814C)., PIN – 678624 BY ADVS. ABRAHAM JOSEPH MARKOS V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAX PALAKKAD, PIN – 678001 BY ADVS. ADV. P.G. JAYASHANKAR PGJ KEERTHIVAS GIRI THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.8,11,12 and 13 of 2023 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ITA NO. 12 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITED WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN - AABCM5814C), PIN - 678624 BY ADVS. ABRAHAM JOSEPH MARKOS V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAX PALAKKAD., PIN – 678001 BY ADV KEERTHIVAS GIRI SC SRI.P.G JAYASHANKAR THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.8,11,12 and 13 of 2023 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ITA NO. 13 OF 2023 APPELLANT/APPELLANT MALABAR CEMENTS LIMITED AGED 54 YEARS WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN- AABCM5814C), PIN - 678624 BY ADVS. ABRAHAM JOSEPH MARKOS V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENT/RESPONDENT ASSISTANT COMMISSIONER OF INCOME-TAX PALAKKAD, PIN – 678001 BY ADVS. ADV. P.G. JAYASHANKAR KEERTHIVAS GIRI THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.8,11,12 and 13 of 2023 5

J U D G M E N T ============ Dated this the 21st day of May, 2024 [ITA Nos.8/2023, 11/2023, 12/2023, 13/2023] Dr. A.K.Jayasankaran Nambiar, J.

In all these appeals the appellant/assessee-Malabar Cements Ltd impugns the order dated 12.12.2022 of the Income Tax Appellate Tribunal, Cochin Bench for the assessment years 2011-12, 2012-13, 2016-17 and 2017-18. 2. The learned Senior Counsel appearing on behalf of the appellant points out that these appeals have essentially to be remanded back to the Appellate Tribunal for a decision on merits, since the Appellate Tribunal in the impugned order has not considered the contentions of the assessee on the merits of the claim for depreciation on spare parts solely because, according to the Tribunal, there was no evidence produced by the assessee in support of its claim for depreciation. It is the

ITA Nos.8,11,12 and 13 of 2023 6 submission of the learned Senior Counsel that the evidence to support the contentions of the appellant/assessee on merits was in fact produced before the Tribunal through an e-mail sent from the office of the Chartered Accountant (authorised representative of the appellant) on 02.12.2022, a copy of which e-mail, together with the notes on submissions, is produced along with these appeals as Annexure E. 3. The learned Senior Counsel further points out that it is apparent from a reading of the impugned order of the Tribunal that the members of the Tribunal did not have the occasion to go through the said evidence as it was not placed before them. He therefore prays that the impugned order of the Tribunal be set aside on the issue relating to the claim for depreciation, and the matter remanded to the Tribunal for a fresh consideration on merits in the light of the evidence that was in fact produced before the Tribunal. 4. We have heard Sri.P.G. Jayashankar, the learned Standing Counsel for the Income Tax Department.

ITA Nos.8,11,12 and 13 of 2023 7 5. On a consideration of the rival submissions, we are of the view that in as much as the Appellate Tribunal did not consider the claim for the appellant for depreciation on merits by citing the non production of evidence by the appellant as a reason for not discussing the matter on merits, and we find that as a matter of fact the evidence supporting the claim for depreciation had actually been filed before the Tribunal through Annexure E e-mail which is produced before us in these appeals, the ends of justice would require as to remand the matter back to the Tribunal for a fresh consideration of the claim for depreciation made by the appellant on merits after considering the said evidence produced by the appellant. 5. Thus, without going into the merits of the case before us and without answering the questions of law raised in these appeals, we set aside the common order of the Appellate Tribunal on the issue of depreciation for the various assessment years aforementioned, and remand the said issue for fresh consideration by the Tribunal. The Appellate Tribunal shall pass fresh orders in the matter, after considering the evidence produced by the appellant before it, within three

ITA Nos.8,11,12 and 13 of 2023 8 months from the date of receipt of a copy of this judgment. To enable the Appellate Tribunal to pass fresh orders without any delay, the appellant is also directed to furnish a fresh set of the documents produced along with Annexure-E e-mail for consideration before the Tribunal within two weeks from the date of receipt of a copy of this judgment. We make it clear that the other issues considered by the Tribunal, and which are not impugned in these appeals, shall be treated as finally decided by the common order of the appellate tribunal impugned in these appeals. The Income Tax Appeals are disposed as above.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR

JUDGE

Sd/- SYAM KUMAR V.M. JUDGE smm

ITA Nos.8,11,12 and 13 of 2023 9 APPENDIX OF ITA 8/2023 PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 28.02.2014 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 21.03.2014 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT. Annexure E ANNEXURE E - PART 2 Annexure F IMPUGNED ORDER DATED 09.12.2022 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 255/COCH/2021 FOR ASSESSMENT YEAR 2011-12

ITA Nos.8,11,12 and 13 of 2023 10 APPENDIX OF ITA 11/2023 PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 22.11.2018 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 20.12.2018 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT. Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 257/COCH/2021 FOR ASSESSMENT YEAR 2016-17

ITA Nos.8,11,12 and 13 of 2023 11 APPENDIX OF ITA 12/2023 PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 27.03.2015 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 23.04.2015 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT. Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 256/COCH/2021 FOR ASSESSMENT YEAR 2012-13

ITA Nos.8,11,12 and 13 of 2023 12 APPENDIX OF ITA 13/2023 PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 05.12.2019 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 01.01.2020 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 25.03.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE DELHI Annexure D TRUE COPY OF THE SECOND APPEAL DATED 23.06.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT. Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 71/COCH/2021 FOR ASSESSMENT YEAR 2017-18

ITA Nos.8,11,12 and 13 of 2023 13